本集简介
双语字幕
仅展示文本字幕，不包含中文音频；想边听边看，请使用 Bayt 播客 App。
接下来我们将听取201199号案件——公平招生组织诉哈佛大学校长及研究员协会案的辩论。
We'll hear argument next in case 201199, students for fair admissions versus the president and fellows of Harvard College.
诺里斯先生？
Mister Norris?
首席大法官阁下，敬请法庭垂听。
Mister chief justice, and may it please the court.
格鲁特案假设大学可以像哈佛那样以严格限定的方式使用种族因素。
Grutter assumed that universities could use race in a narrowly tailored way if they just did it like Harvard.
但本院从未掌握关于哈佛的具体证据。
But this court never had any evidence about Harvard.
现在证据确凿，这些证据证明格鲁特案的核心假设从未成立。
Now you do, and that evidence proves that none of Grutter's core assumptions were ever true.
首先，格鲁特案假定种族因素只会是加分项，但对亚裔而言却是减分项——这个群体在本国持续面临严重的种族歧视。
First, Grutter assumed that race would only be a plus, but race is a minus for Asians, a group that continues to face immense racial discrimination in this country.
亚裔本应比白人更有机会进入哈佛，但事实并非如此，因为哈佛给他们的个人评分明显更低。
Asians should be getting into Harvard more than whites, but they don't because Harvard gives them significantly lower personal ratings.
哈佛大学将亚裔评价为不那么讨人喜欢、自信和友善，尽管实际接触过他们的校友并不这么认为。
Harvard ranks Asians less likable, confident, and kind even though the alumni who actually meet them disagree.
哈佛对亚裔的做法，就像1920年代对待犹太人一样可耻，但这是让大学在高度主观的流程中使用种族的必然结果。
What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful, but it's a predictable result of letting universities use race in highly subjective processes.
其次，格鲁特案假设申请人将被视为个体，而非种族群体成员。
Second, Grutter assumed that applicants would be treated as individuals, not as members of racial groups.
但哈佛根据申请人勾选的种族框给予优待，即使他们从未提及种族或解释其如何影响观点。
But Harvard gives racial preferences based on the box that applicants check, even if they never write about race or explain how it influences their views.
对于有竞争力的申请人，勾选正确的种族框就像在录取天平上加了重锤，其价值等同于赢得全国冠军这类极其罕见的成就。
And for competitive applicants, checking the right racial box is an anvil on the admission scale, Worth the same as ultra rare achievements like winning a national championship.
第三，格鲁特案假设大学会认真考虑种族中立的替代方案。
Third, Grutter assumed that universities would seriously consider race neutral alternatives.
但哈佛直到2017年——我们起诉三年后——才首次这么做。
But Harvard never once did so until 2017, three years after we sued it.
哈佛现在仍拒绝取消传承录取优待或增加社会经济因素考量，尽管这两项改变将使哈佛校园大幅减少白人、富裕和特权阶层比例。
Harvard now refuses to eliminate its legacy preferences or boost its socioeconomic preferences even though both changes would make Harvard far less white, wealthy, and privileged.
哈佛就是这样使用种族因素的。
That's how Harvard uses race.
而哈佛本应是典范。
And Harvard is supposed to be the model.
本法庭应当承认它在哈佛案上错了，在格鲁特案上错了，在放任种族分类的毒害重新渗入教育领域上错了。
This court should admit that it was wrong about Harvard, wrong about Grutter, and wrong about letting the poison of racial classifications seep back into education.
格鲁特案判决应当被推翻，无论是公立学校还是接受联邦资金的私立学校都应如此。
Grutter should be overruled both for public schools and for private schools that accept federal funds.
诺里斯先生，您能否花些时间谈谈上个案件结束时提出的原旨主义论点？
Mister Norris, would you spend a few men some time on, the originalism argument that was made at the last the end of the last case?
当然。
Absolutely.
关于第十四修正案的原初含义，我读过最权威的资料是美国政府在布朗案复审时提交的诉状。
So in terms of the original meaning of the fourteenth amendment, the best source on this I've ever read is The United States brief on reargument in Brown.
它详尽阐述了立法历史，以及第十四修正案制定者如何将其视为对所有种族分类的禁令。
It painstakingly details the legislative history and how the framers of the fourteenth amendment saw it as a ban on all racial classifications.
此外，众所周知第十四修正案的推动力是为了将1866年《民权法案》宪法化。
Also, the everyone knows that the impetus for the fourteenth amendment was to constitutionalize the Civil Rights Act of 1866.
1866年《民权法案》是一系列禁止种族歧视的法令。
The Civil Rights Act of 1866 is a series of bans on racial discrimination.
这是一系列色盲措施和要求。
It's a series of color blind measures and requirements.
而在本案早期偏离轨道进入普莱西案之前，法院审理的一个案例叫斯特劳特案，法院立即认识到这项修正案的目的是消除种族分类，无论这些分类对白人还是黑人有利，因为种族分类本身就会造成伤害。
And then one of the earliest cases this court had before it went off the rails in Plessy was a case called Strouter where the court immediately recognized that the purpose of this amendment was to eliminate racial classifications no matter whether they benefited, whites or blacks because racial classifications themselves impose harms.
这就是肯定性证据。
That's the affirmative evidence.
现在我知道证据的反驳是修正案通过后的历史，但第十四修正案通过后的历史并不是最佳证据，因为我们知道对修正案文本原意的解读存在大规模抵制。
Now I know that the the the evidence, the pushback is the post ratification history, But the post ratification of the history of the fourteenth amendment is not the best evidence because we know there's massive resistance to the original meaning of the text of the fourteenth amendment.
但它也不能证明任何事。
But it also doesn't prove anything.
哈佛简报中引用的每一项措施都是补救措施。
Every measure that's cited in Harvard's brief was a remedial measure.
这是对奴隶制终结以及美国黑人所处境况的回应。
It was in response to the end of slavery and the position that black Americans found themselves in.
哈佛大学没有为其当前行为引用任何补救性措施。
Harvard does not cite a remedial measure for what it's doing today.
它所引用的那些措施在今天将不再具有宪法效力，因为它们已不再服务于补救目的，而且没有任何证据表明当时有人利用种族来实现多样性的教育效益。
Those same measures that it cites would not be constitutional today because they would no longer serve a remedial purpose and not a shred of evidence that that anyone back then used race to achieve the educational benefits of diversity.
如果你们不要求申请者在入学申请表中勾选种族选项，你们会有任何异议吗？
Would you have any objection, if you do not ask candidates for admission to to, check a box, what their race is?
但你们可以考虑申请者在文章中描述的关于如何面对歧视、成长经历以及他/她是如何应对的内容。
But you are allowed to take into consideration what an applicant would say in an in an essay about, having to confront discrimination, growing up and how he or she did that.
你们可以考虑教职推荐人所说的内容。
You are allowed to take in consideration what a faculty recommender said.
要知道，这位申请者可能带来的特质之一就是，在一个他属于极少数群体的地区或学校里，如何处理种族歧视问题。
You know, one of the things that, you know, this applicant would bring is, how to deal with racial discrimination, in an area or in a school where he's part of a very small minority.
对于这种针对特定申请者引入种族因素的考量，你们有任何异议吗？
Is there any do you have any objection to that sort of introduction of of race on behalf of a particular applicant?
当然没有异议，首席大法官阁下。
Absolutely not, mister chief justice.
事实上，在本案审理结束时，我们发现哈佛修改了其申请材料的阅读程序。
And in fact, at the end of this case, at the end of the trial, it was it was we were we discovered that Harvard had amended its reading procedures for applications.
其中有一项修正规定：只有当申请人在论文或推荐信中提及种族时，才应予以考虑。
And there had been an amendment that said, you only should take into account race if someone talks about it on their essay or in their in their recommendation letters.
哈佛删除了这条指导原则，并表示这不是我们使用种族因素的方式。
Harvard deleted that instruction and said, that is not how we use race.
那条规定本就不该存在。
That should have never been put in there.
因此在本案中，我们真正讨论的是那个复选框问题。
So we really are, in this case, talking about the checkbox.
那么您同意，关于申请文书——正如首席大法官指出的——种族经历的一个方面是面对歧视，但种族经历还有其他方面。
So you agree that, with respect to the essays, I mean, the chief justice suggested that one aspect of racial experience is confronting discrimination, There are also other aspects of racial experience.
阿利托大法官早前就举过一个例子。
Justice Alito gave an example earlier.
但你同意就论文而言，无论是辅导员还是学生，都可以自由表达他们选择表达的任何观点，关于他们自己的种族经历及其对招生官员的相关性。
But you agree that with respect to the essays, whether it's guidance counselors or whether it's students, can, can express whatever, views they choose to express about, their own racial experiences and the relevance of that for admissions officers.
是的。
Yes.
第六条禁止的是将种族本身作为考量因素。
The the what what title six bans is race itself as a consideration.
因此，如果一所大学给写关于克服歧视论文的黑人学生加分，同样也给写关于克服歧视论文的亚裔学生加分，那么这就不是基于种族本身。
So if a university gives credit to a black student who writes an essay about overcoming discrimination and equal credit to an Asian student who writes an essay about overcoming discrimination, then that is not race itself.
那是超...
That is over
哦，抱歉。
Oh, sorry.
请继续。
Finish.
正如斯卡利亚大法官在克鲁森案中所写，克服歧视并不构成种族分类。
So that that that's overcoming discrimination, justice Scalia wrote in Croson is not a racial classification.
但我想，在我们之前的辩论中，卡根大法官指出这简直是把香肠切得太细了。
But I guess, you know, in our earlier argument, justice Kagan pointed out that this gets to be slicing the salami pretty finely.
我是说，一方面可以说这展现了韧性，因为你写了关于克服歧视的经历，而学生可以写他们克服的任何障碍，从身体残疾到其他各种困难。
I mean, it's one thing to say yes, that shows resilience because you've written about overcoming discrimination and and a student could write about any number of obstacles that they've overcome from physical disabilities on down the line.
但如果，正如杰克逊大法官在上次辩论中提到的，是关于自豪感呢？
But what if, you know, justice Jackson had asked in the last argument, you know, about pride.
如果申请者写了一篇关于他们的种族身份对他们作为自豪感来源有多么重要，以及种族文化遗产的文化特质有多么重要的文章呢？
What if what if an applicant wrote an essay about how integral their racial identity was to them as a source of pride and the cultural, attributes of the racial heritage were very important.
这样也可以吗？即使这一切都与一个墨西哥家庭的传统紧密相连？
Would that be okay even if it were all intimately tied up say with, you know, the traditions of a Mexican family?
而如果答案是否定的，认为这无法与种族因素分离，那这与某人写音乐在他们生活中的重要性，写他们多么热爱音乐又有什么不同呢？
And and if the answer is no, that can't be extricated from race, why would that be different than someone writing about how important it was to them to have this passion for music in their life, that they loved music?
我认为文化、传统、遗产都不是学生不能谈论或大学不能考虑的话题。
I think culture, tradition, heritage are all not off limits for students to talk about and for universities to consider.
他们不能考虑这个。
They can't consider that.
他们不能读完后说'哦，这人是西班牙裔、黑人或亚裔，所以我要给加分'。
They can't read that and say, oh, this person is Hispanic or black or Asian, and therefore I'm gonna credit that.
他们必须根据申请者所写内容中独特且个性化的部分来评分，而非种族本身。
They need to credit something in unique and individual in what they actually wrote, not race itself.
我有点困惑，因为这听起来像是另一种观点歧视。
I I'm I'm a little confused because this almost sounds like a different kind of viewpoint discrimination.
根据我们的严格审查标准，我们不应该基于观点或宗教信仰进行歧视。
And under our strict scrutiny standards, we're not supposed to discriminate on the basis of viewpoint or discriminate on the basis of religion.
我认为这些（观点和宗教）应该和种族一样被视为神圣不可侵犯。
They're considered as sacrosanct, I believe, as race.
但你暗示的观点是：少数族裔克服歧视的经历——按你定义的重要障碍——是可以接受的。
And yet what you're suggesting is that the viewpoint that somehow being a minority that overcomes discrimination in the way you define it as important as overcoming obstacles, that that's okay.
但如果是一个来自富裕家庭的黑人学生，可能成为白人学校历史上唯一的黑人班长，这个事实却不该被考虑。
But if you're a black person who's from an affluent family who may be the only class president ever in a white school's history, that that fact shouldn't feature.
这难道不是一种观点歧视吗？
That's a form of viewpoint discrimination, isn't it?
我不认为我们是
I don't think we're
但那不是克服任何障碍吗？
But that's not overcoming any kind of obstacle?
我们并不是说大学必须考虑什么或什么都不考虑。
We're not saying that universities have to consider anything or nothing.
大学只是不能考虑种族本身。
Universities just cannot consider race itself.
但我以为你说的是这两种论文可能都完全适合大学考虑。
But I thought you were saying that both of those essays might be entirely appropriate for the university to consider.
是这样吗？
Is that correct?
正确。
Correct.
还是我误解了你的意思？
Or did I misunderstand what you were saying?
不。
No.
没有联邦法规规定大学应考虑哪些申请文书。
There is no federal statute about what essays, universities consider.
联邦法律禁止将种族本身作为考虑因素。
There's a federal ban on consideration of race itself.
为什么你们只是反对招生官员查看一个复选框？
Why is it are you just objecting to touching a box that admissions officers can look at?
我们反对在决策过程中将种族作为加分或减分因素。
We're objecting to the use of race as either a plus or a minus in making
但我不认为你们...我认为地方法院已明确认定，仅勾选复选框并不会让任何人获得录取。
it But I don't think you've I think the district court made very clear findings that check checking the box alone is not what got anybody in.
这是一个综合评估过程，会考虑申请者的所有表现，而种族可能只是众多因素之一。
That that it was a holistic enterprise that looked at everything that that candidate did, and race might have been one among many factors.
因为有许多西班牙裔和黑人申请者的GPA比许多未被录取的白人申请者更高。
Because there's a lot of Hispanics and blacks who have higher higher GPAs than so many whites who don't get admitted.
所以他们并非仅仅依据肤色是黑是白来做决定。
So they're not looking at just being black and white.
他们拒绝了很多成绩比白人和亚裔美国人更高的前10%申请者。
They're rejecting a lot of the 10% applicants who have higher numbers than, I guess, whites and Asian Americans.
法官大人，地区法院在我们提交的请愿书附录第116页有一项对我们有利的裁决，认定哈佛大学可以仅根据种族复选框就给予优待，无论申请人是否就此撰写文章或表明这对他们很重要。
Your honor, there's a finding from the district court in our favor at page one sixteen of the petition appendix that Harvard can award a racial preference based on the checkbox alone whether or not an applicant writes about it or otherwise indicates that it's important to them.
这一点很重要。
And that is important.
这就是种族本身的问题。
That's race itself.
该裁决是基于地区法院无争议的认定，即种族因素单独并不决定任何一份录取结果，它只是众多考量因素之一。
That that finding was made in, in an undisputed finding by the district court that race alone did not account for any one admissions package, that it was race among many factors.
地区法院认定种族因素对45%被哈佛录取的黑人和拉丁裔学生具有决定性作用。
Well, the district court found that race is determinative for forty five percent of blacks and Hispanics who get into Harvard.
是的，这意味着有55%的人即便没有这个因素也能被录取。
So, yes, there's 55% who would not get in.
我将让韦克斯曼先生来辩论这一点，因为我对记录的理解并非如此。
I'll let mister Waxman debate that because that's not the way I saw that record.
地方法院的裁决非常明确，例如，亚裔或非亚裔身份在统计上与任何录取决定无关，无论是ADLCs还是非ADLCs申请者？
It was very clear that the district court found, for example, that being Asian or not being Asian wasn't involved statistically in any amount in any of the admissions, whether for ADLCs or for non a ADLCs?
我只是想澄清一点。
Well, I I just wanna be clear.
45%这个数字是指种族因素对黑人和西班牙裔申请者起决定性作用的情况。
The 45% number is when race is determinative for blacks and Hispanics.
这是指种族因素起决定性作用的申请者比例。
That's the number of applicants who it's determinative for.
我们的数字要高得多。
Our number was much higher.
这不是我提出的数字。
That's not my number.
这是哈佛大学在其种族中立替代方案报告中给出的数字。
That's Harvard's number in their race neutral alternatives report.
律师，请允许我暂时回到第十四修正案的起草问题上。
Counsel, if I could return a moment to the drafting of the fourteenth amendment.
您说我们应该忽略批准后的历史，但让我们稍微关注一下它。
You said we should ignore the post ratification history, but let's just pay a little attention to it for a moment.
在简报中，我们讨论了国会设立的解放奴隶局。
In the briefs, we have discussion about the Freedmen's Bureau that that that congress set up.
这与您的立场如何一致或不一致？
How is that consistent or inconsistent with your position?
我认为这完全一致，法官大人。
I think it's entirely consistent, your honor.
解放奴隶局在大多数情况下并未设立任何种族分类。
The Freedmen's Bureau, for the most part, did not draw any racial classifications.
它是基于曾是奴隶或难民的身份进行分类，而当时的难民主要来自内战，大多是白人。
It was classifications on the basis of being a former slave or a refugee, and the refugees at the time from the civil war were mostly white.
事实上，当国会有人反对说这是基于种族的法律时，支持解放奴隶局的人否认了这一指控。
In fact, when when objections were made in congress that this is a racial, based law, The people who supported the Freedmen's Bureau denied the charge.
他们没说同意，但那又怎样？
They didn't say yes, but so what?
他们明确否认了这一点。
They said no, it is not.
这完全与种族无关。
It is not race based at all.
那么按此逻辑，如今给予奴隶后代的福利也不应被视为基于种族。
So today, a benefit to descendants of slaves would not be race based.
对吗？
Correct?
我...我认为这个观点不正确，卡瓦诺大法官。
I I think that's incorrect, justice Cavanaugh.
可你刚才声称，自由民局对前奴隶的援助并非基于种族。
Well, how does that you just said, benefit to former slaves was not race based in the Freedmen's Bureau.
这两者现在有何区别？
How's that different, now?
本院认可的补救性例外情形范围相当有限。
Well, the remedial exception that this court has recognized is is fairly narrow.
必须是在先的
It has to be prior
问题在于这是否基于种族。
Questions whether it's race based.
你刚才对戈萨奇大法官说——抱歉打断他的提问——但我认为你对戈萨奇大法官表示，对前奴隶的福利并非基于种族。
You you said you said, I think, to justice Gorsuch I'm sorry to interrupt his question, but you said to justice Gorsuch, I think that the benefit for former slaves was not race based.
这是正确的。
That's correct.
对前奴隶后代的福利同样不基于种族。
And the benefit for descendants of former slaves is also not race based.
你当然可以提出其他论点，但根据你对戈萨奇大法官的陈述，这似乎并非基于种族。
You can make other arguments if you want about that, but it does not seem to be race based under what you said to justice Gorsuch.
对吗？
Correct?
不正确。
Not correct.
我认为前奴隶自身获得福利与后代获得福利是有区别的。
I think there's a difference between the former slaves themselves getting a benefit versus generations later.
我认为这是基于血统的分类，根据本法院的先例仍然存在问题。
I think that's a classification on the basis of ancestry, which is still problematic under this court's precedence.
即使这不是直接基于种族，也会假设大学正在——具体取决于记录——但大学正在以重建国会未曾采用的方式，将该分类作为种族的替代指标。
Even if it's not directly race based, would assume that universities are are and you depending on the record, but universities are drawing that classification as a proxy for race in ways that the Reconstruction Congress was not.
好的。
Okay.
请允许我总结一下。
If I might just finish up.
自由民事务局属于联邦层面。
The Freedmen's Bureau is on the federal side.
我们面前还有一些简报也讨论了州层面的实践。
We have some briefs before us that also talk about practice on the state side.
我们知道内战结束后不久，各州通过了许多基于种族的法规，其中大部分是吉姆·克劳法，这些法律恶意地基于种族进行歧视。
Now we know that shortly after the civil war, there were a lot of race based statutes passed by states, and most of them were Jim Crow laws that invidiously discriminated on the basis of race.
但对方引用了两个他们认为并非如此的例子，一个来自肯塔基州，一个来自南卡罗来纳州。
But, your friend on the other side cites two that he says are not, one from Kentucky and one from South Carolina.
你能回应一下这些吗？
Could you address those?
可以。
Yes.
我们引用了同一时期各州完全色盲的法规汇编。
So we we cite a book of statutes from the same era from states that were purely color blind.
但他们确实引用了两个例子。
But they do cite two examples.
一个是南卡罗来纳州的，我认为该法规禁止政府许可实体进行种族歧视。
One from South Carolina, which I believe banned racial discrimination by government licensed entities.
并且该州立法机构发现我们政府许可的实体仍在基于种族进行歧视。
And there was a finding by that legislature that our government licensed entities were continuing to discriminate on the basis of race.
我认为这直接是一项补救措施。
I think it was a directly a remedial measure.
考虑到战争结束和当时仍在持续的大规模种族歧视，这一措施是合理的。
It made sense in light of, you know, the end of the war and the massive racial discrimination that was still ongoing.
肯塔基州的法规则更为明确。
Now the Kentucky statute is even clearer.
它提供了福利。
It gave benefits.
虽然涉及种族分类，但它为肯塔基州默瑟县一群没有财产、因受伤无法工作且没有收入的人提供了福利。
It it was a racial classification, but it gave benefits to a group of people in Mercer County, Kentucky who had no property, were so injured they could no longer work, had no income.
我想，法规所指的应该是默瑟县大量新近获得自由的奴隶。
I mean I mean, I think that what the statute was talking about were the people, the the recently, freed slaves in Mercer County to which there were many.
关于这点我还有一个最后的问题。
And then I have one final question about this.
鉴于第十四修正案的措辞并未涉及州层面，我们是否应该关注各州的实践，还是应该关注联邦层面的做法。
There's also a question of whether we should pay attention to state practices, given the language of the fourteenth amendment, which, doesn't pertain to or whether we should pay attention to federal side.
抱歉。
Sorry.
鉴于第十四修正案的措辞并未意图禁止国会采取的补救措施或分类——当时国会正全力投入重建工作——而第十四修正案的起草者特别关注州层面的种族分类，因为众所周知，其中许多分类将被用作歧视非裔美国人的《吉姆·克劳法》。
Given that the language of the fourteenth amendment doesn't purport to bar remedial measures or classifications by congress, which at that time was in full reconstruction efforts, but that the drafters of the fourteenth amendment were especially concerned about racial, classifications at the state level because so many of them, everyone knew, would be used as Jim Crow laws were to discriminate against African Americans.
我认为这个观点有一定道理，戈萨奇大法官。
I think there's something to that, justice Gorsuch.
斯卡利亚大法官曾重述过部分历史，我想可能是在阿迪兰德案中，他说没有理由认为当时对联邦政府存在同样的不信任。
Justice Scalia recounted some of that history, I think, and maybe Adirand, where he said, there's no reason to think that the same distrust of the federal government would have been there at the time.
但我不认为这些联邦法规特别难以处理——如果你假设平等保护原则约束联邦政府的话——因为它们显然都是补救性质的。
But I I I don't think any of these federal statutes are even particularly hard if you assume the equal protection principle binds the federal government because they are all plainly remedial.
这些法规都与多样性无关，哈佛大学也没有提出支持这些税收的补救性利益主张。
None have anything to do with diversity, and Harvard has not pressed the remedial interest that justified those taxes.
但许多民权法规及相关法律的目标是实现与白人的平等。
But many of the civil rights statutes and some of the laws pertaining there too were directed to, and directed to being equal to whites.
因此这些法规中确实存在种族意识。
So there was consciousness of race in those statutes.
我...我认为在相关意义上并非如此。
I I I I think not in a relevant sense.
2019年Jam案中本院曾指出，该法案的措辞本身是色盲的——白人必须享有与白人同等的权利，这意味着人人平等。
Those statutes this court said in the Jam case in 2019 that that exact language is color blind, that whites you have to have the same right rights as whites, which means everyone is equal.
他们确实使用了基于种族的表述，但实质上是禁止了种族歧视。
Now they used race based language, but the race well, what they did was they banned racial discrimination.
那么对于当时通过的那些不仅惠及前奴隶还包括自由黑人的法案，在你看来仍属于补救性质吗？
So what we do about all the legislation that was passed that gave benefits not just to former slaves but to free blacks, that was still remedial in your mind?
因为当时确实存在不平等。
Because there was inequality.
对吗？
Correct?
我...我认为是的。
I I believe it was.
这是针对整个已形成法律体系的种族歧视制度作出的回应。
And it was in response to a entire system that had been built up of of de jure discrimination.
我认为那些也是补救性法规。
I think those were remedial statutes as well.
而且即便
And even
即便我们现在存在法律上的歧视或隔离，国会也不能对此采取措施吗？
if Even if we have de jure discrimination now or segregation now, congress can't look at that?
因为我们确实存在法律上的隔离。
Because we certainly have de jure segregation.
不同种族在获取机会方面，在我们的社会中受到截然不同的对待。
The races are treated very differently in our society in terms of their access to opportunity.
我相信补救性例外条款仍然是有效的法律原则。
I believe that the remedial exception is still good law.
这是最高法院在'家长联合会案'中认定的、允许在教育领域使用种族因素的两个正当理由之一。
It was one of the two things that justifies the use of race in education that this court identified and parents involved.
然而哈佛大学并未提出这一论点。
However, Harvard has not made that argument.
哈佛大学缺乏支持这一论点所需的事实记录。
It has no factual record that you would need to support that argument.
它并未基于自身过去对黑人和西班牙裔的歧视行为来为其种族政策辩护。
It does not justify its use of race based on its own prior discrimination against blacks and Hispanics.
您是否了解当前存在的法律上的种族隔离现象？
Are you aware of de jure segregation today?
我不了解。
I am not.
据我们所知，大学校园里的种族优待政策增强了种族意识。
I am aware that, that racial preferences on college campuses, in our believe in our view, have increased racial consciousness.
所以校园里确实存在这种现象，但这并非法律上的隔离。
And so there's some of this is happening on campus, but it's not it's not de jure.
虽然国内存在大面积居住隔离现象，但很难明确界定这是否构成种族隔离。
It's not clear that there's segregation between there are large swaths of the country with residential segregation.
我国有大量学校的学生群体仅由单一种族构成。
There are large numbers of of schools in our country that have people of just one race.
有些学校和学区只有单一种族的孩子，没有多种族或白人学生。
There are schools, districts that have only kids of one race and not multiple race or not white people.
在我看来，Du jour意味着这些地方是种族隔离的。
Du jour to me means places are segregated.
原因可能各不相同，但在我们国家，许多地方确实存在种族隔离。
The causes may be different, but places are segregated in our country.
确实如此。
Absolutely.
而且我认为，Fisher案中前10%的招生计划——这个计划在Fisher案中也受到了很多批评——但这类解决方案本意是要以种族中立的方式解决居住隔离问题。
And I I think the top 10% program in Fisher, which really got a a bad rap in Fisher too, but was meant solutions like that are meant to account for residential segregation in a race neutral way.
是的。
Yeah.
问题在于它们并没有做到这一点。
The problem is that they don't.
这是地区法院的发现。
That's what the district court found.
我对Fisher案二的记忆是，前10%计划在增加德克萨斯大学少数族裔学生入学方面取得了极大成功。
My memory of Fisher two was that the top 10% program was extremely successful at increasing the enrollment of underrepresented minorities at Texas.
还有其他解决方案。
There are other solutions.
我们在这个案件中有一个非常复杂的种族中立替代方案，它考虑了社会经济地位，并迫使哈佛取消主要面向白人校友子女的偏好政策。
We have we have a very sophisticated race neutral alternative in this case that takes into account socioeconomic status and forces Harvard to eliminate its preferences for the largely white legacies.
这是另一种方式。
And that is another way.
我是说，按照我们的数据，校园里的亚裔学生人数会增加，西班牙裔学生人数会增加，弱势少数族裔的总人数也会增加。
I mean, our numbers, the number of of Asians would increase on campus, the number of Hispanics would increase on campus, the overall number of underrepresented minorities would increase on campus.
黑人数量不会增加。
Blacks wouldn't increase.
黑人代表比例将达到10%，这已经高于马萨诸塞州的整体比例。
Black representation would be 10%, which is higher than it is in the state of Massachusetts.
而这个数字其实是相当低的。。
And that number is quite low.
我们的专家作证称，如果哈佛大学愿意考虑财富而非收入，这个数字会好得多，因为现今我们看到的主要种族差异不在于父母收入，而在于代际财富。
Our expert testified that if Harvard was only willing to consider wealth instead of income, that number would be quite a bit better because the main disparities we see on the basis of race today is not on parental income but on generational wealth.
然而哈佛大学辩称，我们对广义的多样性有着迫切需求，且法院一直尊重这一利益诉求。
Harvard Harvard argues, though, that we have a compelling interest in diversity writ large and that this court has deferred to that interest.
我们需要在班级中体现的多样性因素之一就包括大额捐赠者的子女。
And among the diverse things that we need to have in our class are children of large donors.
有证据表明——就是我们之前讨论过的博物馆、校友子女、以及壁球队的情况。
There's evidence about that museum we talked about earlier, children of legacies, and and squash team.
我...我不是在编造。
I I I'm not making it up.
这是记录在案的。
It's in the record.
那么法院在多大程度上应该将这些利益诉求纳入其迫切利益分析的考量范围？
And to what extent should this court be deferring to those interests as part of, its compelling interest analysis?
完全不应该，法官大人。
Not at all, your honor.
我认为严格审查意味着你需要能够拒绝种族中立方案，因为它们无法满足迫切利益，而这个迫切利益是全面广泛的多样性——不是击剑地位的下降，不是《美国新闻与世界报道》排名下滑五分，而是多样性本身。
I I don't I think strict scrutiny means you need to you need to be able to reject race neutral alternatives because they don't satisfy the compelling interest, and the compelling interest is overall broad based diversity, not declines in our fencing status, not drops in five points on The US News and World Report, but it's diversity.
哈佛在这个案件中有点讽刺。
And Harvard, it's a little ironic in this case.
除了种族统计数据外，哈佛根本谈不上多样性。
Harvard is not diverse at all, besides its racial statistics.
哈佛大学新生中有9%是保守派。
9% of incoming freshmen at Harvard are conservatives.
哈佛82%的学生来自富裕家庭。
Harvard is 82% wealthy.
校园里每23个富裕学生才对应1个低收入学生。
There's 23 rich students for every one low income student on campus.
在其他几乎所有方面都缺乏多样性。
It is not diverse in hardly any other way.
因此我认为Grutter案中认可的迫切利益，并非哈佛实际追求的目标。
And so I think that the compelling interest that you recognize in Grutter is not what's actually being pursued on Harvard.
你听到我说继续
You heard me Go
请讲
ahead.
请继续
Go ahead.
我是说，你现在是否认为在多种多样性中，种族多样性有其重要性和紧迫性？
I mean, are are you saying now that there is an interest and a compelling interest in racial diversity among other kinds of diversity?
我是说，暂且不论哈佛是否应该在经济社会层面更加多元化——或许确实应该
I mean, putting Harvard's you know, whether Harvard should be more socioeconomically diverse, probably should be.
但我想问的是，种族多样性本身是否具有重要性？
But putting that I mean, is there an interest in racial diversity?
我同意我同事的观点
I agree with my colleague.
这不足以构成能证明种族分类合理性的紧迫利益
Not a compelling interest that could justify a racial classification.
但种族多样性并非坏事。
But racial diversity is not a bad thing.
它是件好事。
It is a great thing.
它是某种
It is something
但这整个前提。
But the whole premise of this.
对吧？
Right?
而且，我们可以讨论这些项目是否足够精准定制，大学是否在种族中立标准的使用上做得足够。
And, you know, we can talk about whether these programs are narrowly tailored, whether the universities have done enough to, in in the with the use of race neutral criteria.
但你论点的前提是，即便种族中立标准无法达成目标，哈佛也不能使用种族意识标准。
But the premise of your argument is that even if race neutral criteria could not achieve the object, Harvard can't use race conscious criteria.
这必定是因为你认为它根本不够重要。
And that must be because you think it's just not important enough.
难道不是这样吗？
Isn't that right?
我认为这不对。
I don't think that's right.
我们这里有非常详细的记录证据表明，如果哈佛大学在招生过程中不考虑种族因素，仍会有6%的非裔美国人。
So we have very detailed record evidence here that if Harvard just turned off race on its admissions process, it would still have 6% African Americans.
我相信拉丁裔占9%，所以15%无法辨识。
I believe it's 9% Hispanic, so 15% unrecognizable.
还不错，但如果是2%呢？
Good enough, but how about if it were 2%?
我的意思是，你的论点本质是说这无关紧要。
I mean, the nature of your argument is that it doesn't matter.
这就是你论点的本质。
That's what the nature of your argument is.
我不同意，卡根大法官。
I disagree, justice Kagan.
这确实很重要，因为如果低于这些数字，哈佛可能在某种程度上存在歧视，应该停止这种做法。
It does matter because if you're below those numbers, then Harvard's probably discriminating in some sense, and it should stop.
或者说它没有以应有的方式触及代表性不足的少数群体。
Or it's not reaching underrepresented minorities in the way that it should.
或许它不应该
Perhaps it should not
但这只是在回避问题。
But that's just fighting the the the question.
我的意思是，问题在于，是否存在一个界限，超过这个界限你就会说，哦，是的。
I mean, the question is, you know, is there a limit beyond which you would say, oh, yes.
如果无法通过种族中立的标准实现那种多样性水平，那么就可以使用考虑种族因素的标准。
If if you can't achieve that level of diversity with race neutral criteria, then you're allowed to use race conscious criteria.
我认为没有任何理由可以为明确的种族分类辩护，但如果你允许的话，我想再反驳一次这个假设，因为...
I I don't think there's any level that justifies explicit racial classifications, but I I'm gonna fight the hypothetical one more time if you let me because Yeah.
不行。
No.
我认为
I think
我会的。
I will.
那么让我继续问你几个其他问题。
So let me just go on and ask you a couple of other things.
因为在我看来，这里的很多争论是关于大学在组建多元化班级方面具有强烈利益，包括种族维度，也许尤其是种族维度，考虑到我们社会面临的种种挑战，就像我们社会所有其他机构一样。
I mean I mean, because this is, you know, to me, this is a lot of the argument here is about a university has a compelling interest in collecting a diverse class, including along racial dimensions, and maybe especially along racial racial dimensions, given the kinds of challenges that our society faces, in the exact same way that all the other institutions of our society does.
所以我只想就这方面问你几个问题。
So I'm just going to ask you some questions about that.
如果如果你是一家医院，服务多元化的患者群体，拥有一支多元化的医生团队对你来说是否极其重要？
If if if, if you're a hospital and you serve a diverse group of patients, is it super important to you to have a diverse set of doctors?
我不确定关于医生和患者多样性或医疗领域任何方面的证据
I I don't know that the that the evidence about the diversity of doctors and patients or anything about the medical field
这并不重要。
It wouldn't matter.
是的。
Yeah.
好的。
Okay.
或许会有影响。
Or maybe it would.
你不知道。
You don't know.
如果你是一个警察局，服务的社区多元化，拥有一支多元化的警察队伍对你来说是否至关重要？
If you're a police department and you serve a diverse community, is it super important to you to have a diverse set of police officers?
我认为这很重要，如果有充分证据表明种族分类是必要的，但这与大学多元化的教育效益无关。
I mean, I I believe that's important, if there's good evidence that that that a racial classification was needed, that has nothing to do with the educational benefits of diversity in universities.
这是格鲁特案所关注的利益
That's the interest that Grutter
你认为，如果你是一家律师事务所，或者你是一名法官，想要拥有多元化的书记员团队，法官在做出书记员任命决定时不能考虑这一点吗？
Do you think that, if you're a law firm or if you're a judge if you're a judge and you want to have a diverse set of clerks, do you think a judge can't think about that in making clerkship decisions?
当然可以考虑这一点。
Absolutely can think about it.
本法院在Feeney案中的裁决表明，知晓种族并非违规行为。
This court's decision in Feeney says knowledge of race is not the violation.
问题在于将其作为区分因素
It is using it as a factor
来区别对待。
to distinguish him.
假设有位法官说，我想要多元化的书记员团队。
Let's let's say a judge says, I want a diverse set of clerks.
也就是说，我希望书记员能在多种标准下表现优秀，但同时我也希望团队具有多样性。
That's, you know, I want clerks who would, you know, grade on any number of criteria, but I also want a diverse set of clerks.
因此经过多年后，人们会看到团队里有亚裔美国人，
So over the years, people will look at that, and they'll say, there are Asian Americans there.
也有西班牙裔人士。
There are Hispanics there.
那里有非裔美国人，也有白人。
There are African Americans there, as well as there are whites there.
法官不能这样做吗？
Can a judge not do that?
我认为这是一个值得赞赏的目标。
I mean, I think that's a that's a that is a admirable goal.
我不认为法官可以通过打压亚裔申请人或大幅偏袒黑人和西班牙裔申请人来实现这一目标。
I don't think a judge could implement that goal putting a thumb on the scale against Asian applicants or giving a big preference to black and Hispanic applicants.
我认为你需要基于种族平等对待每个人，就像你不会因为我的种族而贬低我论点的质量一样。
I think you need to treat people treat equally based on race just as you're not gonna hold my race against me in judging the quality of my arguments.
我认为种族多样性很重要，因为它是确保我们的机构平等开放的良好指标。
I think race, racial diversity is important because it's a good metric to make sure our our our institutions are equally open.
你当然可以对此表示关注。
You can certainly be concerned about that.
但问题在于使用种族分类，告诉人们他们因为种族原因未能获得书记员职位。
But the question is using racial classification, telling people that you didn't get the clerkship because of your race.
是的。
Yeah.
但这里的重点是，听着，每个人都更希望通过种族中立的方式实现我们所有的种族多样性目标。
But the the the the point here is, look, everybody would rather achieve all our racial diversity goals through race neutral means.
每个人都更希望如此。
Everybody would rather that.
这当然也是我们的案例规定你必须做的。
And that's certainly what our cases say you have to do.
问题是，当种族中立的方式无法实现目标时，你是否被禁止以我提到的所有方式考虑种族因素？
The question is, when the race neutral means don't get you there, are you prevented from taking race into account in all those ways that I said?
我还可以列举更多例子。
And I could add a dozen more.
那些企业发现，为了实现其经济目标，拥有种族多元化的员工队伍是必要的。
Businesses who find it necessary, you know, in order to achieve their economic objectives to have racially diverse workforces.
我是说，我可以一直列举下去。
I mean, I could go on and on and on.
问题是当种族中立手段无法达成目标，当你一再尝试却仍无法实现时，能否转而采用种族意识手段？
And the question is when race neutral means can't get you there, don't get you there, when you've tried and tried, and they still won't get you there, can you go race conscious?
我不这么认为，卡根大法官。
I don't believe so, justice Kagan.
我认为贵院在'家长参与案'中已明确表示，种族多样性并非一项迫切利益。
I think your this court has already said in parents involved that racial diversity is not a compelling interest.
大学校园需要的是包括各种类型的整体多样性。
It is overall diversity of all kinds on college campuses.
我的意思是，这不必是假设性的讨论。
And I don't I mean, this is not this doesn't have to be hypothetical.
我们已向哈佛大学提出替代方案，该方案将首次实现社会经济多样性，提高 underrepresented 少数族裔比例，同时减少校园白人学生数量。
We presented an alternative to Harvard that would achieve socioeconomic diversity for the first time, that would boost underrepresented minority representation, that would lower the number of white students on campus.
所以我们讨论的不是'零多样性'与'多样性'的问题。
And so we're talking not about no diversity and diversity.
我们讨论的是10%还是14%的非裔学生比例
We're talking about 10% black representation or 14%
黑人 我会说，这是一个更狭隘的论点。
black That's I would say, narrower argument.
我认为卡根大法官说得对，你有一个更广泛的论点，即这无关紧要。
Think justice Kagan's right that you have a broader argument that it wouldn't it wouldn't matter.
然后根据我阅读的提交材料和你的陈述，你还有一个更狭隘的论点，即即使在巴基-格鲁特框架下，种族中立的替代方案也足以实现足够多样性。
Then you have a narrower argument as I read the submission and hear you that even under the Bakke grudder framework, race neutral alternatives suffice to achieve the the kind of diverse sufficient diversity.
我要问你同样的问题，就像我问司法部长一样：在你这个我认为更狭隘的论点中，你如何衡量这一点？
And I'm gonna ask you the same question I asked the solicitor general, which is how do you how do you measure that on your narrower, as I see it, argument?
也许你不想接受我的定性，但就我所理解的你的更狭隘论点而言，什么是足够的？
Maybe you don't wanna accept my characterization, but on what I see as your narrower argument, what what is sufficient?
用司法部长的话说，在你看来什么是有意义的？
What's meaningful to use the solicitor general's words in your view?
嗯，我认为你需要衡量...我的意思是，如果你只是把格鲁特的利益当作既定事实，你需要衡量你的学生群体是否在所有维度上都是多样化的。
Well, I think you need to be measuring I mean, if you just take Grutter's interest as a given, you need to be measuring whether your student body is diverse on all dimensions.
我不认为哈佛...
I don't think Harvard
不是。
is No.
让我具体问一下。
Let me ask it specifically.
你如何知道提出的种族中立替代方案是否足够、能否达到足够的少数族裔代表性水平，以满足Bakke和Grutter案的要求（虽然我知道你不同意这些案例）？
How do you know whether a race neutral alternative proposed would be sufficient, adequate to achieve sufficient levels of otherwise underrepresented minorities that you would satisfy what Bakke and Grutter, which I know you disagree with, but would satisfy what those achieve.
你听到了副检察长的回答，我很好奇你对她回应的看法，或者你对此的替代意见。
And you heard the solicitor general's answer, and I'd be curious your responses to her or your alternative submission on that.
我认为举证责任在哈佛大学。
Well, I think the burden is on Harvard.
因此哈佛需要提供关于已提出或自行考虑的种族中立替代方案的证据，并证明为何这些方案无法实现多样性的教育效益。
And so Harvard would need to come forward with evidence about race neutral alternatives that have been presented or that it's considered itself and show how under that alternative it's not getting the educational benefits of diversity.
在本案中，我们获得的唯一证词是哈佛不知道需要多少数量才能获得多样性的教育效益。
Now in this case, the only testimony we have is that Harvard doesn't know what number it needs to get the educational benefits of diversity.
正如Fitzsimon院长作证时所说，哈佛不知道需要参考什么证据来确认这一点，甚至不知道这些证据应该是什么样子。
Doesn't know what evidence to consult to know whether it has that, doesn't know what the evidence would even look like, as Dean Fitzsimon testified.
唯一的证据是哈佛大学关于多样性重要性的报告，
And the only evidence is Harvard's report, on on the importance of diversity,
但在查看时，抱歉。
which But in looking I'm sorry.
看看你们的提案或加州、密歇根、华盛顿的情况，我认为简报的一大主题是：
Looking at your proposals or looking at California or Michigan or Washington, one of the big themes, I think, the brief is, hey.
这些州已经实施了种族中立替代方案，并且有效地实现了多样性。
We have these states that have done race neutral alternatives, and that's been that's been effective in achieving diversity.
你可以反驳这种描述，但这是我从简报中得出的主题。
I think you can dispute that characterization, but that's a theme I gleaned from the briefs.
当我审视这些时，我想知道‘有效’或‘足够’具体意味着什么？
And as I look at that, I wanna know what does that mean, effective or adequate?
衡量标准究竟是什么？
What what's the measurement?
这实际上与我对司法部长提出的问题是相同的。
Really the same question I had for the solicitor general.
展开剩余字幕（还有 480 条）
它要求我们说，是的，这就足够了，但我认为这需要更多的解释。
It's asking us to say, yes, that's adequate, but what does that gotta say more than that, I think.
我认为部分问题在于Grutter案中利益本身的模糊性。
Part of the problem, I think, is the fuzziness of the interest in Grutter itself.
不。
No.
不。
No.
不。
No.
接受这个利益。
Accept the interest.
好的。
Okay.
抱歉打断一下。
Sorry to interrupt.
接受种族中立这一观点，这是你辩护状后半部分的内容。
Accepting that the interest race neutral this is the back half of your back part of your brief.
种族中立的替代方案是足够的。
Race neutral alternatives are adequate.
我只是想知道，好吧。
And I I just wanna know, okay.
嗯，加州、佛罗里达州，很好。
Well, California, Florida, great.
这就足够了，因为这可以适用于哈佛大学，因为？
That's adequate because the And that could be translated to Harvard because?
加州大学系统是世界上种族最多样化的精英教育机构。
The the University of California system is the most racially diverse, elite institution in the world.
白人是校园里第三大代表性群体。
Whites are the third most represented group on campus.
如果种族多样性确实能带来这些教育效益，而他们已经实现了这些目标——他们确实研究过本科生在种族意识和跨种族理解方面的情况。
So if racial diversity has these educational benefits and they've achieved them, I think they they study their undergraduates on your racial consciousness and your cross racial understanding.
他们在伯克利获得了非常高的分数。
They get really high scores at Berkeley.
伯克利和整个加州大学系统告诉未来的学生，我们有一个非常多元化的学生群体，并且你能从中获得预期的教育益处。
Berkeley and all the UC system tells prospective students that we have a very diverse student body and that the educational benefits where that you would expect to get from that are present.
它是全国排名第一的公立大学。
It's the top ranked public university in the country.
它是你的
It's your
那么你的观点是，必要的补充观点是，这在本质上可以转化为哈佛，或者某些足够的内容可以转化为哈佛。
point then, the the necessary add on point is, and that could be translated to Harvard in essence or something sufficient could be translated to Harvard.
我只是想让你填补这个空白。
I just want you to fill in the blank there.
为什么？
Why?
我我认为你可以。
I I think you can.
我们重点研究的种族中立替代方案，我们称之为模拟d，将使哈佛的经济优势学生比例从82%降至51%。
Our our race neutral alternative that we focused on, simulation d is what we called it, would make Harvard go it it would go from 82% economically advantaged to 51%.
实际上你将获得纯粹的社会经济多样性，比例大约各占一半。
You would actually have pure socioeconomic diversity where it's about fifty fifty.
白人学生的数量将会减少。
The number of white students would decrease.
亚裔学生的数量将会增加。
The number of Asian students would increase.
西班牙裔学生的数量将会增加。
The number of Hispanic students would increase.
我认为你会看到其中诸多益处。
I think you'd see lots of benefits in that The
黑人学生的数量会从多少降到多少？
number of black students would decrease from what to what?
比例将从14%降至10%，这是具体数字。
Would decrease from 14% to 10% was the number.
我们的专家作证表示，10%这个数字是绝对底线，因为仅凭社会经济偏好这一项，缺乏哈佛所拥有的精细数据，比例不可能更高。
And our expert testified that that number 10% is an absolute floor because he only the number couldn't be higher because his socioeconomic preference didn't have the sophisticated data that Harvard has.
我认为这在任何标准下都是成功的，而且我从未听过哈佛证明其中的差异对实现多元化的教育效益是必要的。
I think that's successful on on any metric, and I I've never heard Harvard prove the the the delta there as being, necessary for educational benefits of diversity.
律师，我不知道在这种情况下该如何处理。
Counsel, I don't know what to do in a situation like this one.
即使你在所有指标上都取得完美成绩，也不能保证被哈佛录取。
If you have perfect scores on every metric, you're not guaranteed a spot at Harvard.
因为他们有足够多来自各种背景、各项指标都完美的申请者，远超班级名额限制。
Because they have enough people with perfect scores of every background that exceeds their class limit.
在某些时候，必须要有某种因素来打破这种平局。
At some point, something has to break the tie.
众所周知，学术和课外活动中表现顶尖的10%亚裔、非裔和拉丁裔学生并未被哈佛录取。
And as we know, p top 10% students of Asian and of black and Hispanic backgrounds in academic and extracurricular activities are not being admitted to Harvard.
所以并不是说一旦我们取消种族因素，所有你认为超级合格的申请者就都能被录取。
So it's not as if once we say, take race out of this, that all of the people who are that you consider super qualified are gonna get in.
但在每个评估维度上，都会有相互竞争的申请者。
But on every matrix, there's going to be competing applicants.
而你的意思是学校不能根据整体多样性数据，在同等条件的申请者中，如果某些群体的指标数据偏低，就将种族作为决定因素？
And you're saying a school can't look at its general diversity figures and say, among equal applicants, I might make race a tiebreaker if the numbers that I have on that metrics seem fairly low.
否则你就是在否定这种可能性。
Otherwise, you're saying no.
你们不能这样做。
You can't do that.
不能。
No.
你们不可以这样做。
You cannot do that.
这正是《教育法》第六章所禁止的
That's what title six for visit us
在信贷方面。
in credit.
基本上，你的意思是种族多样性并不重要。
Basically, what you're saying is, really, race diversity is not important.
所以我不明白为什么所有基于种族的方案，无论是10%计划还是社会经济因素，都是为实现某种种族多样性而采取的变通手段。
So I don't actually see why all the race based because all of the alternatives, whether it's the 10% plan, whether it's socioeconomic, they're all subterfuges to reaching some sort of diversity in race.
你标榜它们是种族中立的，但实际上没有一个是真正种族中立的。
You're touting them as race neutral, but none of them are race neutral.
你这么做是因为你相信种族多样性。
You're doing them because you believe in racial diversity.
我只是不明白为什么将种族作为一个因素（而非唯一因素）考虑，与使用其他任何标准有什么不同。
I just don't understand why considering race as one factor but not the sole factor is any different than using any of those other matrix.
我不认为那些是伪装下的种族分类。
Well, I don't think those are those are racial classifications in disguise.
哈佛从未批评过我们提出的模拟方案是伪装下的种族分类。
Harvard's never criticized simulation d that we presented as a racial classification in disguise.
它批评是因为没有达到哈佛精确的种族人数目标。
It criticizes because it doesn't hit Harvard's precise racial numbers.
这是基于社会经济地位的，我不认为有人会认为取消传承录取
It's based on socioeconomic status, and I don't think anyone thinks eliminating legacy
这会降低SAT分数的平均值。
It reduces SAT scores, averages.
这会降低许多其他因素以达到你们的数字目标。
It reduces, lots of other factors to get to your numbers.
我认为这正是我们的观点，SAT分数会从第99百分位降到第98百分位。
I mean, I think that's our point, that that SAT scores would go from the ninety ninth percentile to the ninety eighth percentile.
这并非牺牲学术卓越性。
That's not sacrificing academic excellence.
这只是让哈佛从哈佛变成达特茅斯。
That's moving Harvard from Harvard to Dartmouth.
达特茅斯仍然是所好学校。
Dartmouth is still a great school.
他们获得的是第98百分位的SAT分数。
That's that they get ninety eighth percentile SAT scores.
你得要...我不...
You've gotta be I I don't.
我...我是那些热爱它的人。
I I are those who love it.
谢谢，律师。
Thank you, counsel.
托马斯大法官。
Justice Thomas.
阿利托大法官？
Justice Alito?
还有问题吗？
Anything further?
卡根女士？
Miss Kagan?
只有一个问题。
Just have one.
关于Grutter案中25年刑期及其相关讨论应如何理解，我有一个问题。
One question about the, how to think about the twenty five year, sentence in, Grutter and the surrounding discussion.
是的。
Yeah.
完全正确。
Absolutely.
我认为人们忘记了25年期限前您提到的四个段落，其中解释了种族优待政策除非能让自己变得不再必要，否则将无法通过其自身的严苛测试。
I think that what people forget about the twenty five year mark were the four paragraphs you mentioned before where they explain that racial preferences, they will fail their own acid test unless they make themselves unnecessary.
因此我认为奥康纳大法官的意思是，25年后如果我们仍需要种族因素，不是再给25年期限，而是宣告种族优待政策失败并终止，转向种族中立政策进行尝试
So I think what justice O'Connor was saying is that in twenty five years, if we still need race, it's not that you get another twenty five years, it's that we then declare racial preferences to be a failure and call it off and go to race race neutrality and try that
相反。
instead.
巴雷特大法官？
Justice Barrett?
但我们尚未达到那个25年的节点。
But we're not to that twenty five year point yet.
对吧？
Right?
所以如果它自带自毁机制，就像说的，嘿，格鲁特说我们必须放弃，因为它们根本不起作用。
So if if it has its own self destruct mechanism where it says, like, hey, Garter says we gotta call it quits because they're just not working.
我们有义务给予更多时间吗？
Are we obligated to give more time?
嗯，哈佛大学显然从未表示过五年后会停止考虑种族因素。
Well, Harvard has certainly never indicated that in five years, it will stop using race.
哈佛大学在这二十年间完全没有减少对种族因素的考量。
Harvard over the twenty year span has not decreased its use of race at all.
我认为本法院唯一认可过的关于何时停止在教育中使用种族因素的法律标准，就是布朗案中提出的'以最审慎的速度'。
And I think the only legal standard this court has ever recognized for when do you stop using race in education is in Brown with with all deliberate speed.
对于二十五年的期限，我们从一开始就不支持这种设定。
The twenty five year mark, we don't, you know, we don't support it from the get go.
但我们确实认为奥康纳大法官的预测并未实现。
But we do think there was a prediction from justice O'Connor that is not borne out.
因此根据格鲁特案自身的条款，我认为二十年已足够做出判断。
And so Grutter on its own terms, I think twenty years is enough to call it.
谢谢，律师。
Thank you, counsel.
瓦克斯曼先生？
Mister Waxman?
首席大法官阁下，敬请法庭明鉴，本案的证据与调查结果证实了本院长期认可的观点：由多元背景、经历和兴趣构成的大学生群体对国家至关重要。
Mister chief justice, and may it please the court, the evidence and findings in this case confirm what this court has long recognized, that a university student body comprising a multiplicity of backgrounds, experiences, and interests, vitally benefits our nation.
刻板印象被打破。
Stereotypes are broken down.
偏见得以减少，批判性思维和问题解决能力得到提升。
Prejudice is reduced, and critical thinking and problem solving skills are improved.
学生群体的多样性使我们的企业更具创新力和全球竞争力，科学家更具创造力，医疗专业人员更高效，军队更具凝聚力。
Student body diversity makes our businesses more innovative and globally competitive, our scientists more creative, our medical professionals more effective, and our military more cohesive.
实践充分印证了鲍威尔大法官的见解：我们国家的未来取决于能否培养出与这个国家同样多元化的学生群体中成长起来的领导者。
Experience has more than borne out justice Powell's observation that our future as a country depends on having leaders who have enjoyed wide exposure to students as diverse as the nation itself.
正如本法院一贯所持立场，若为实现真正的多样性，大学无需对种族视而不见——就像申请者所就读高中的类型、他们的社会经济与家庭背景、或居住地区一样，种族构成了他们身份的一部分。
And so as this court has consistently held, if necessary to achieve genuine diversity, a university need not blind itself to race, which like the type of high school an applicant attended, their socioeconomic and family background, or the part of the country they live in, forms a part of who they are.
现在，学生公平录取组织试图利用哈佛大学的招生计划作为某种证据，来证明既定的宪法判例存在严重错误。
Now SFFA attempts to use Harvard's admissions program as some sort of proof that settled constitutional precedent is egregiously wrong.
尽管SFFA完全有权提出自己的法律论点，但它无权捏造事实。
But while SFFA is fully entitled to its own legal arguments, it is not entitled to its own facts.
在本案经过详尽调查后，初审法院审议了30位证人的证词及详细的专家分析，并作出了全面细致的裁决，这些裁决得到了上诉法院的有力支持。
Following exhaustive discovery in this case, the trial court considered the testimony of 30 witnesses and detailed expert analysis and made extensive meticulous findings which the court of appeal robustly affirmed.
这些严格审查后的研究结果表明，哈佛大学并未在招生决定中不当强调种族因素。
And those findings, applying strict scrutiny, are that Harvard does not improperly emphasize race in its admissions decisions.
它没有进行种族配额平衡。
It does not engage in racial balancing.
哈佛绝对没有歧视亚裔美国申请人，而且目前也尚未找到可行的种族中立替代方案。
It most certainly does not discriminate against Asian American applicants, and it does not yet have a current workable race neutral alternative.
学生公平录取组织所坚持的错误主张，不足以推翻数十年来确认招生中有限考虑种族因素的合宪性先例。
The false narrative to which SFFA claim clings is no basis to dismantle decades of precedent confirming the constitutionality of limited race consciousness in admissions.
我非常欢迎法庭的提问。
And I very much welcome the court's questions.
韦克斯曼先生，申请人辩称实际上超过80%的情况下，你们确实可以采用一种不考虑种族因素的方法，这种方法会产生不同但同样出色的结果。
Mister Waxman, the petitioner argues that over 80% that actually you could you do have available a not a race neutral approach that would yield different but excellent results.
他们的论点包括：至少在他们看来，哈佛超过80%的学生来自富裕家庭，这并不构成多样性，而且大约30%的班级由ALDC（运动员、校友子女、院长兴趣名单和教工子女）学生组成。
And the argument includes the fact that, at least as they argue, that you're over 80% wealthy students, that that's not diverse, and that over 30% or 30% or so of a class is made up of ALDC students.
他们认为如果降低这些比例，就能在不考虑种族因素的情况下，沿着社会经济路线实现更加多样化的结果。
And that if you were to lower those numbers, you could achieve far more diverse results without along socioeconomic lines.
虽然我不认为哈佛在社会经济多样性方面存在争议，但至少表面看来并非如此。
And I don't think it's arguable that Harvard is socioeconomically diverse, but at least it doesn't appear that way.
但似乎如果你们从社会经济角度进行调整，这不会产生宪法问题。
But it seems that and that would not have a constitutional problem if you did it socioeconomically.
我希望你能简单回应他们的论点。
And I'd like you simply to address their argument.
好的。
Yes.
谢谢。
Thank you.
首先，我朋友随口提到的数字实际上并不能反映哈佛大学的社会经济多样性现状。目前哈佛有20%的新生无需支付任何费用。
First of all, the numbers that my friend is throwing around are not in fact the numbers that actually reflect, for example, socioeconomic diversity at Harvard, where as it stands now, 20% of all matriculants pay nothing.
70%的少数族裔学生无需支付学费，而且超过半数的申请者都能获得可观的经济资助。
70% of underrepresented minorities pay nothing, and well over half of all applicants get substantial financial aid.
关于您提到的种族中立替代方案问题——托马斯大法官，如果我理解有误请纠正——我想这正是您要问我的。
But as to your point about race neutral alternatives, and I correct me if I'm wrong, justice Thomas, but I think this is what you're asking me about.
本案中我们有极其详尽的指标数据，涉及种族中立替代方案的研究结果和证词，以及所谓的ALDC群体——这个缩写词我记得自己当时就在现场见证了它的诞生，它指的是校友子女、教职工子女、运动员以及其他被列入院长关注名单的申请人群体。
We have exquisitely detailed metrics in this case with respect to race neutral alternatives and findings and testimony with respect to the so called ALDCs, which is an acronym that I think I was present I was actually literally present at the birth of, which is a preference for children of alumni, children of faculty and staff, athletes, and other people who have found themselves on the dean's interest list.
本案数据显示，如果取消种族因素——既不能考虑种族，也不能给予任何ALDC优先政策——那么入学班级的种族多样性将会下降。
This the data in this case shows that if that if race were eliminated, you couldn't consider race, and you also could give none of those preferences, the racial diversity of the matriculating class would go down.
如果不考虑种族因素，非洲裔美国学生的比例将从14%降至6%。
The the the representation of African Americans, if you just stop considering race, would go from 14 to 6%.
如果同时取消ALDC政策，这个比例将进一步降至5%。
But if you also stop considering ALDCs, it would go to 5%.
关于让我们就
With respect to Let's just
假设一下，尽管
say hyp hypothetically, though.
假设地
Hypothetically.
我知道我会
And I I know I'm gonna get
我明白所有常见的注意事项，并且我接受这一点
I I know all the usual caveats, and I accept that.
谢谢你，韦克斯曼先生
Thank you, mister Waxman.
我很
I'm pretty
确定既然你问我，我不会喜欢
sure since you're asking me, I'm not gonna like
你不是
You're not
会喜欢的。
gonna like it.
但我们假设一所非常富有的大学可以支付所有人的学费，同时还能增加其捐赠基金。
But let's assume that a very wealthy university could pay for everybody to go and still increase its endowment.
马尔科姆·格拉德威尔称它们为永动机。
It's a perpetual motion machine, Malcolm Gladwell called them.
假设它只是放弃了对捐赠者子女、校友子女和壁球运动员的偏好。
Let's say if it just gave up preferences for donor's children, legacies, and squash athletes.
好吗？
Okay?
或者也许那些划船队的成员，所有这些往往主要偏向白人孩子。
Or maybe those who row crew, all of which tend to favor predominantly white children.
如果它能实现其认为的种族多样性，那么它是否会被允许进行种族意识的考量？或者在这种情况下，你是否同意那样做就不够精确裁量了？
And it could achieve whatever it deemed racial diversity, would it then be permitted to engage in race consciousness, or in that circumstance, would you agree that that would not be narrowly tailored?
所以我并不主张。
So I'm not claiming.
我接受你提出的假设，尽管根据我所理解的证据，这对我来说很难。
I'm accepting your hypothetical as hard as it is for me in light of what the evidence I understand.
显示。
Shows.
这就对了。
There we go.
我并非主张捐赠者本身存在令人信服的利益。
I I am not claiming that there is a compelling interest in having donors per se.
在你所说的艺术博物馆中存在令人信服的利益。
There is a compelling interest in your proverbial art museum.
存在一个令人信服的
There is a compelling
艺术博物馆中存在令人信服的利益？
There is a compelling interest in the art museum?
不。
No.
不。
No.
不。
No.
这些这些都不是我要主张的。
These these are the things that I'm not claiming.
好的。
Okay.
我只是在主张所有这些。
I'm just claiming all of those things.
好吧。
Alright.
当你审视所谓种族中立的替代方案时，正如鲍威尔大法官在巴基案中阐述，本院在格鲁特案和费希尔案中强调并深化的问题在于：这种种族中立方案是否真正实质性地影响了院校特性及其提供的教育质量？
When you look at a so called race neutral alternative, the question that this court that justice Powell articulated in Bakke and this court underscored and amplified in Grutter and then in Fisher is how does is does that race neutral alternative actually substantially impact the character of the institution and the education that's being provided?
请让我打断一下，很抱歉插话，但取消这些偏好政策确实会对大学产生重大影响。
Now let me stop you there because and I'm sorry to interrupt, but surely getting rid of those preferences would substantially impact the university.
但你的意思是这些政策不符合宪法意义上的重大利益要求？
And But you are you're you're saying they are not a compelling interest for constitutional purpose.
不是。
No.
不是。
No.
我说的是第十四修正案。
What I'm saying fourteenth amendment.
第十四修正案对校友子女有什么规定？当然。
What does the fourteenth amendment make make legacy children Of course.
好的。
Okay.
不。
No.
所以我们达成一致了。
So we agree.
当然不是。
Of course not.
事实是，如果本案证据表明取消传承偏好会产生重大影响，那么说地方法官在适用严格怀疑审查和狭义裁量原则方面已经相当克制了
And the truth of the matter is that if this were a case in which the evidence showed that eliminating a legacy preference made a substantial difference, The district judge who to say that the district judge was applying strict skeptical scrutiny on the narrow tailoring principles is quite an understatement
好的。
Okay.
可能会做出不同裁决。
Might have decided otherwise.
地方法院发现——如果我可以就记录发表一点看法，乔治法官，我认为这至少回应了你假设的要点和精神——
What the district court found and judge Gorges, if I can just make one comment about the record, which I think responds to the at least the gist and spirit of your hypothetical.
关于种族中立替代方案，即本院所称的D模拟方案，地方法院发现'D模拟方案将要求哈佛在招生过程中几乎每个重要维度上都做出牺牲'
With respect to race neutral alternatives, the the the simulation, what has come to be called simulation d in this court, the district court found that, quote, the simulation d would require, quote, sacrifices on almost every every dimension important to Harvard's admissions process.
除其他事项外——这些都在史密斯委员会报告中有详细记载，在地方法院和上诉法院关于种族中立替代方案的广泛讨论中也有提及——例如在学术卓越方面，五分制中获得1或2分的入学学生比例将下降17%
Among other things, and these are all recited in the Smith Committee report, they are recited in the the extensive discussion of race neutral alternatives in both the district court opinion and the court of appeals opinion are that, for example, with respect to academic excellence, the academic factor, the number of of matriculants with who score one or two on the five point scale would go down 17%.
我了解这些，韦克斯曼先生，我对所有情况都很熟悉。
I'm familiar mister Waxman, I am familiar with all that along.
换句话说，我们应该从第99百分位降到第98百分位。
In other words, we should from 99 to ninety eighth percentile.
我明白了。
I've got it.
如果可以的话，我想换个话题。
If I if I might shift gears.
好的。
Okay.
我
I
我对所有这些都很熟悉，对此我很感激。
I I I'm familiar with all those, and I appreciate that.
我理解你的观点。
And I understand your point.
那只是个假设。
It was a hypothetical.
我们该如何看待这段历史？
What do we do about history here?
因为我们从简报中了解到或被告知的是，哈佛大学在20世纪20年代转向全面申请评估体系，是因为它想对犹太裔申请人实施配额限制，但又不愿公开这样做。
Because one one of one one thing we we know or we think we know or we're told in the briefs at least is that Harvard's move to a holistic application approach happened in the nineteen twenties because it wanted to impose a quota on Jewish applicants, but it didn't want to do through front door.
于是它用多样性作为种族配额限制的幌子。
So it used diversity as an as subterfuge for racial quotas.
本案记录显示——具体细节在几份报告中有所讨论（我一时想不起报告名称），包括哈佛多年来关于多样性和多元化招生的报告，比如所谓的鲁登斯坦报告和科罗纳报告（两者都收录在联合附录中）——事实上哈佛早在内战前就在招生政策中加入了从观点和地域两方面实现班级多元化的努力。
What the record in this case shows, and it's it's discussed in some detail in the I'm gonna blank on the names of the reports, but the various reports that Harvard has done over the years on diversity and diverse admissions in the case, one is the so called Rudenstein report, and the other is the corona report, both of which are in the joint appendix, is that Harvard actually, even before the civil war, has added its admissions policy an effort to, in fact, diversify on both viewpoint and geography the class.
毫无疑问，哈佛承认并引以为耻的是，1921年时任校长洛威尔认为犹太学生过多，随后开始在申请中设置涉及'品格'的问题。
Now it is no there's no doubt, and Harvard acknowledges and is ashamed that in 1921 of its presidents, president Lowell, decided that there were too many Jews and that they were then gonna start asking questions on the application that would allow them to take into effect character.
认为这与哈佛现行招生流程（由40人组成的招生委员会通过全体讨论审议每份申请）有任何相似之处的观点，正如法院所认定的那样，与当年那位校长推行的反犹种族主义政策同样站不住脚。
The notion that that bears at all on the way that Harvard's current admissions process, which uses a 40 person admissions committee that meets and decides each application en banc in discussion, has any resemblance whatsoever to the racist antisemitic policy of a single Harvard president is insubstantial as the courts found.
好的。
Okay.
那么你如何回应这一点——我们再次收到许多亚裔申请人的法庭之友意见书，他们声称存在一个完整的产业帮助他们淡化亚裔特征以申请大学，并认为精英大学实际上对亚裔设置了配额，只是没有明说？
How do you respond then to, again, we have many briefs on this point from Asian American applicants who have and and they say there's an entire industry to help them appear less Asian on their college applications and that they consider elite colleges to have Asian quotas effectively, if not in name?
我要说两点。
I'll say two things.
第一，关于法庭之友意见书的总体情况；第二，具体关于哈佛大学的情况——我当然想重点谈谈第二点。
One, generally about the amicus briefs, and two, specifically about Harvard, and I I certainly wanna get to number two.
但有多份由亚裔美国组织提交的法庭之友意见书，其中一份特别有力——由1,240位研究亚裔美国人经历和亚洲血统的学者联署，他们不仅提出观点还援引研究证明：亚裔美国人群体（须知亚洲占世界人口的61%且包含多元民族）已明确受益于将种族作为众多考量因素之一的整体性招生政策。
But there are multiple amicus briefs filed by Asian American organizations and one that is particularly, I think, powerful, filed by 1,240 scholars of Asian American experience and Asian ethnicity, all of whom not only opine but cite studies showing that Asian Americans as a group, and Asia, of course, represents 61% of the world's population and a multiplicity of ethnicities, that Asian Americans been demonstrably benefit from holistic admissions policy that considers race as one factor among many.
关于哈佛大学，本案中的证据之多，用‘有证据’来形容都显得过于轻描淡写了。
Now with respect to Harvard, there was to say that there was evidence in this case is quite an understatement.
地区法院发现——我正在引用——
The district court found I'm citing.
我引用联合附录第261页的内容，上诉法院在第80页重申了这一发现：'完全不存在针对亚裔美国人的歧视证据'。
I'm quoting page two sixty one of the joint appendix, and it's reiterated by the court of appeals on page 80 of the joint appendix, that there was, quote, no evidence of discrimination against Asian Americans whatsoever.
再次强调，现在请看第264页。
Again, now on page two sixty four.
有持续、明确且令人信服的证词表明，在招生管理流程中总体上不存在歧视，特别是在个人评分方面。
There was consistent, unambiguous, and convincing testimony that there was no discrimination in the administration administrate admissions process in general and the personal rating in particular.
本案原告经过四年精心挑选申请材料进行全面审查后，仍未能提供任何一位证人证明自己曾遭受歧视。
The the plaintiffs in this case could not after four years of discovery in which they handpicked applications to view in total, they could not produce a single witness to testify that he or she had been discriminated against.
韦克斯曼先生，请允许我在此打断您，因为您提到了个人评分——这是哈佛大学基于诚信、勇气、善良和同理心等品格特质给出的评分。
Mister Waxman, let me stop you there because you referred to the personal score, And that's a score that Harvard gives based on character traits such as integrity, courage, kindness, and empathy.
但记录显示亚裔申请者获得的个人评分是所有群体中最低的。
But the record shows that Asian student applicants get the lowest personal scores of any other group.
对此您作何解释？
What accounts for that?
无非是以下两种可能之一：
Is it it it has to be one of two things.
要么他们确实在诚信、勇气、善良和同理心方面不如其他种族的学生，要么就是这个个人评分体系本身存在问题。
It has to be that they really do lack integrity, courage, kindness, and empathy to the same degree as students of other races, or there has to be something wrong with this personal score.
这个...我是说，我稍后会解释相关证据，但恕我直言，这个二选一的推论本身就是错误的。
That's that is I mean, I I wanna get to what the evidence was there, but that that syllogism, with all due respect, is wrong.
例如，1983年进行的一项研究调查了为何女性申请诺大学研究生院时会出现这种情况。
There was, for example, a study that was done in 1983 that looked at why it was that female applicants to graduate school at the University of No.
请直接回答这个问题。
Just address this.
个人
The personal
哈佛大学给亚裔申请者的评分，为什么他们为什么比其他群体得分更低？
score that's given to Asian applicants to Harvard, why do they why are they given a lower score than any other group?
好的。
Okay.
关于为何亚裔群体在个人评分上存在轻微数值差异（同时课外活动评分和学术评分上亚裔又略有优势），他们的专家对后两项给出的解释是：唯一能建立的模型无法考察招生官在个人评分中参考的几乎所有因素。
So the answer to why they as a group, why there is a slight numerical disparity with respect to the personal rating of Asian Americans, but and also a slight numerical disparity to the advantage of Asian Americans with respect to the extracurricular rating and the academic rating was the answer that their expert gave with respect to the latter two, which is that the only way that you can the only model that can be created to figure out what was going into the personal rating couldn't look at almost anything that admissions officers look at in those ratings.
该模型无法——也不可能——模拟升学指导老师的推荐信内容、教师推荐信内容、申请文书内容以及面试官评语内容。
It can't there's no way that it could model what the guidance counselor letters said, what the teacher letter said, what the essays said, what the interviewer's letter said.
换句话说，我认为
In other words I thought the
面试官并未因种族原因给亚裔申请者打比其他申请者更低的分数。
interviewers did not rate the applicants lower than other than other applicants based on race.
在面试官的评价中并不存在这种差异。
There was not the disparity in what was done by what was said by the interviewers.
关于校友面试官的部分，基于这里包含的子集（顺便说一句，这个子集排除了所有ALDC申请者）
The with respect to the alumni interviewers The alumni based on based on the subset that was included here, that their subset, by the way, excluded all ALDC applicants.
尽管他们承认不仅没有证据表明对亚裔ALDC申请者存在歧视，而且这些申请者表现更好，但他们仍从模型中排除了平均占录取人数30%的这类申请者。
That is even though they acknowledged that there was not only no evidence of discrimination against Asian American ALDCs, but they did better, they eliminated from their their model applicants that represent on average 30% of the admitted class.
暂且不提教师推荐信或辅导员推荐信（这点我稍后会谈到），我仍未听到任何关于亚裔个人评分差异的解释。
Still putting aside the the teacher recommendations or guidance counselor recommendations, which I'll come to, I still haven't heard any explanation for the disparity between the personal scores that are given to Asians.
他们的排名低于白人申请者。
They rank below whites.
他们的排名远低于西班牙裔，更远低于非裔美国人。
They rank way below Hispanics and really way below African Americans.
而且你谈论的是成百上千名申请者，可能有数千人之多。
What's and you're talking about hundreds and hundreds of applicants, maybe thousands.
对此有什么解释？
What is the explanation for that?
关于这个解释，我无法比初审法院的事实认定做得更好，正如所确认的那样，但我想就你的问题明确两点。
So the explanation that was I can't do better than the findings of fact in the trial court as affirmed, and and I and I but I wanna make two points very clear with respect to your question.
所有这些证据都在初审法院面前展示，关于亚裔美国人这部分持续了超过一周，也许两周。
We all of this evidence was all of this was on display and in front of the trial court for this Asian American part of it for well more than a week, maybe two weeks.
地方法院在考虑了所有证据后认定，引用原话，'没有可信证据能证实SFFA对个人评分所暗示的不当歧视'。
The district court found, considering all of the evidence, that there is, quote, no credible evidence that corroborates the improper discrimination suggested by SFFA's interpretation of the personal rating.
页
Page
262。
two sixty two.
再说一次。
One more time.
地方法院认定，引用原话，'亚裔美国人身份与哈佛招生官给出的个人评分之间存在统计学上显著且负面的关系'。
The district court found, quote, a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers.
没错。
That's correct.
她所说的是，由于缺乏关于教师评价、辅导员意见以及这些学生所写内容的证据，记录无法提供完整的解释。
And what she said is the record will not allow a full explanation for of that because it the the this this there is there was no evidence with respect to what teachers said, what guidance counselors said, what these students wrote wrote about.
但就本案中的歧视指控而言——这正是Bakke案、Grutter案和Fisher案中争议的歧视定义，他们的律师在开庭陈述中也明确表示，本案讨论的是招生结果中的歧视问题。
But what we can say with respect to the allegation of discrimination in this case, which was the the the definition of discrimination that was at issue in Bakke and Grutter and Fisher and which their expert which their lawyer got up at opening statement and said, when we talk about discrimination in this case, we're talking about discrimination in admissions outcomes.
对此，地方法院和上诉法院都认定，没有证据表明在招生结果中存在对亚裔美国人的歧视。
And here again, the district court found and the court of appeals also concluded that there was no evidence of discrimination in admissions outcomes outcomes against Asian Americans.
无论你对个人评分有何看法——毕竟这只是一个数字
Whatever you think about the personal rating, which is after all simply a number
阿利托大法官想提问。
that justice Alito would like to ask a question.
抱歉。
I'm sorry.
我不是在故意拖延时间。
I'm not trying to filibuster you.
说完你的句子。
Finish your finish your sentence.
好的。
Okay.
再问一个问题。
Will ask one more question.
我只是想澄清一点，以防记录中不够明确。
I just I I wanna make one other thing clear to the extent that it's not clear from the record.
个人评分，就像学术评分、课外活动评分和体育评分一样，是由所谓的'第一读者'给出的一个数字。
The personal rating, like the academic rating and the extracurricular rating and the athletic rating, is a number that is put down by a, quote, first reader.
档案进来时，
That is the file comes in.
通常并不完整。
It's not usually complete.
作为初步筛选，40名招生官中的一位会审阅并给出这些数字评分。
And just as a matter of triage, one of the 40 admissions officers goes through and gives these numerical numbers.
这份证词在小组委员会和委员会会议后不会被以任何方式考虑。
It is the testimony was it is not considered in any way once the subcommittees and committees meet.
它，用引号说，'逐渐淡出背景'。
It, quote, fades into the background.
它不是录取决定的依据。
It is not the basis of admissions decisions.
因此，法院不仅认定个人评分中那微小的差异不能作为歧视的证据，而且这种影响对最终结果产生了雪球效应。
And so not only did the court find as fact that those that that slight disparity was not evidence of discrimination even in the personal rating, It had a snow effect with respect to outcomes.
这完全没有任何影响吗？
It makes no difference whatsoever?
它确实不影响，完全没有任何差别。
It's It doesn't affect that it makes no difference whatsoever.
看看专家证词是怎么说的，我意识到我们...
Look at what the expert testimony was, and I I realize we're
它到底有没有影响？
Does it make a difference, or doesn't it make a difference?
这在录取结果上不会产生统计学差异，那为什么两个法院都
It doesn't make a statistical difference in admissions out Then why is it both courts
你们为什么要这么做？
Why do you do it?
我们...我是说...
We I said, I mean
这无关紧要。
It doesn't matter.
你们为什么要这么做？
Why do you do it?
我们将其作为分流处理的手段。
We do it as a matter of triage.
目前哈佛大学去年收到了61,000份申请，却只有1,600个名额。让招生官在审阅材料时，根据这四个指标对申请进行初步评估，以此合理分配注意力是完全理性的做法。
Right now, Harvard is getting, last year, got 61,000 applications for 1,600 slots, and it is entirely rational way of figuring out where how you're gonna allocate your attention to ask an admissions officer as the file is being developed, just go through in a very rough way and rate a particular application based on what you can see on these four metrics.
亚裔美国人平均获得略低的个人评分，并不比他们在学术和课外活动方面获得略高评分更能证明存在歧视——数据显示这两者都没有统计学意义。
The fact that Asian Americans got a marginally on average, a marginally lower personal rating score is no more evidence of discrimination against them than the fact that they got a marginally higher rating than any data can show on academics and extracurriculars.
这并不意味着他们更聪明或人们认为他们更聪明。
It doesn't mean that they're either smarter or people think they're smarter.
谢谢，律师。
Thank you, counsel.
我们会
We'll get
稍后处理您的问题。
to you in a moment.
关于哈佛大学非裔申请者的讨论很多都是笼统且不加区分的，而实际上他们涵盖了非常广泛的申请者群体。
There's been a lot of talk about African American applicants to Harvard in sort of a general, indistinguishable way when, in fact, they cover a very broad swath of of applicants.
当然。
Of course.
你们如何处理非裔申请者的情况？
What do you do with respect to an African American applicant?
我的意思是，你们关注的是观点多样性。
I mean, you're concerned about diversity of viewpoint.
假设他的观点往往与白人申请者非常接近。
Let's say his viewpoints tend to be very close to, you know, the white applicants.
他在格罗斯波因特长大的，成长环境优越，生活舒适。
He grew up in Grosse Pointe, you know, had a great upbringing, comfortable.
他的父母都上过哈佛。
His parents went to Harvard.
他是校友子女。
He's a legacy.
然而在你们的制度下，当他勾选非裔美国人时，就会获得加分。
And yet under your system, when he checks African American, he gets a a tip.
他因此获得了优势。
He gets a benefit from that.
这不正是哈佛项目中的刻板印象吗？
Isn't that isn't that very stereotypical on under the Harvard program?
我...我认为...首先，并非每个黑人申请者都能获得所谓的'加分'。
I I think it's it's well, first of all, it is simply not the case that every every black applicant gets a, quote, tip.
事实上，我将提请法庭注意联合附录第1,811页，其中包含这张精美的图表，它展示了种族对申请结果相对重要性的无争议模型。
In fact, I'll direct the court's attention to page 1,811 of the joint appendix, which includes this beautiful chart, which represents an undisputed model of the relative importance of race on application outcomes.
而在最右侧你几乎看不到的那一项就是种族。
And the one that you cannot actually even see to your far right is race.
种族解释了
Race explains
看不见是因为它太远了。
see it because it's far away.
事实上，我是说
In fact, I mean
尽管如此，你们有
Nonetheless, you have
接近于零。
to pay zero.
它非常接近于零。
It is very close to zero.
这就是本案的证词
That is the testimony in the case
所以当时只有一点种族歧视在
So was there's only a little racial discrimination in the
这个案子里？
case?
你
Are
是在问我哈佛是否在基于种族歧视，你要我回答一个假设哈佛存在种族歧视的问题吗？
you asking me whether Harvard is you're asking me to answer a question that assumes that Harvard is discriminating on the basis of race?
不
No.
我不能接受这种说法
I can't accept that.
哈佛的说法是什么，韦克斯曼先生，本案不就是关于对亚裔美国人歧视的吗？
What Harvard says is what is mister Waxman, isn't that what the case is about, the discrimination against Asian Americans?
投诉的第一项指控是哈佛大学故意歧视亚裔美国人。
There was a count one of the complaint was that Harvard was intentionally discriminating against Asian Americans.
该案的全部证据，即原告的所有举证，都表明亚裔申请人受到的待遇比白人申请人更差。
The the entire evidence of that case, all of the plaintiff's proof, was that Asian Americans are treated worse than white applicants.
这证明存在偏见和蓄意歧视。
That is that there was prejudice, intentional discrimination.
这些证据无法
That could the evidence could not
受到更深刻的影响。
be more soundly affected.
图表？
Charts?
你们怎么处理他们简报中的图表？
What do you do with the charts in their brief?
我想它们在24页或43页，关于学术、十分位数以及非洲裔、西班牙裔和亚裔美国人待遇的比较数据。
I think they're on page 24 or 43, the academic, decile and the comparative treatment of, African Americans, Hispanics, and Asian Americans.
你没看出这里面存在惊人的差异吗？
You don't see a surprising disparity in that?
关于这点有很多可说的，但我想首先指出的是，他们自己的专家也同意那张图表只是描述性统计，用他们的话说'不等于歧视的证据'。
So there's a lot to be said about that, but I guess the first thing I would say about that chart is that their own expert agreed that because that chart is simply a descriptive statistic, it is, quote, not equal to evidence of discrimination.
它反映的是一种可能真实也可能不真实的模式。
It reflects a pattern which might or might not be real.
要明白他们展示给你们看的那张图表，已经排除了所有ALDC（运动员/校友子女/院长名单/教职工子女）申请者。
Now understand that that chart that they've displayed for you, they have eliminated all ALDC applicants.
所以六年里三分之一的录取学生甚至不在那张图表中。
So one third of the admitted class over six years, they're not even in that chart.
那张图表完全是基于所谓的'学术指数'构建的。
They've all their that chart is predicated on something called an academic index.
学术指数是一个考察两方面的公式：高中成绩和考试分数。
An academic index is a formula that looks at two things, high school grades and test scores.
不同种族类别的申请者在学术指数上会因包含种族在内的其他因素而获得不同结果。
The academic in the different racial categories, they have a different result based on other factors, which include race.
他们之所以有不同的结果，是因为在哈佛考虑的任何特定申请者的众多特征中，有一个它不考虑的就是学术指数。
They they have a different result because among the many, many, many characteristics of any particular individual applicant that Harvard considers, one that it does not consider is the academic.
这正是他们展示给你的那个指标。
That is the the very metric that they're displaying for you.
哈佛甚至根本不使用这个指标。
Harvard doesn't even use.
本案中唯一的证词表明，计算学术指数的唯一原因是因为常春藤联盟的体育规则要求，你招募的运动员班级的AI（学术指数）不能比录取班级的平均水平低超过两个标准差。
The only the testimony in the case was the only reason that the academic index is even calculated is because the Ivy League athletic rules require that your recruited athlete class, the the AA for your AI for your recruited athlete class not be more than two standard deviations below
去年入学的班级。
the matriculated class last year.
先不考虑那个关于非裔美国人是校友子女的假设案例。
Put aside the hypothetical about the African American applicant who's a legacy.
拿两个同属一个类别的非裔美国申请者来说，无论你怎么理解这个类别。
Take two African American applicants in the same category, however you wanna take it.
他们都可以基于种族因素获得加分，对吧？
They both get or both can get a tip, right, based on their race.
然而他们的观点可能完全不同。
And yet they may have entirely different views.
其中一些观点可能从亚裔或白人的角度促进多样性。
Some of their views may contribute to diversity from the perspective of Asians or whites.
有些可能不会。
Some of them may not.
但事实是，他们仅因肤色就有资格获得相同的录取机会提升。
And yet it's true that they're eligible for the same increase in the opportunities for admission based solely on their skin color.
所以重点是
So the the point is
那是个问题。
That was a question.
不。
No.
我知道。
I know.
我正试图回答你的问题。
I'm I'm I'm attempting to answer your question.
毫无疑问，正如证词所示，对于那些在多个维度上表现极为出色、几乎达到录取临界点的申请人来说，他们确实是真正的录取候选人。
There is no doubt that for as the testimony showed, that for applicants who are essentially so strong on multiple dimensions, so extraordinarily strong on multiple dimensions that they are sort of on the bubble, that they might they're a real candidate for admission.
作为非裔美国人、西班牙裔，或在某些情况下作为亚裔美国人，可以成为众多加分项中的一项，这将使...
African being African American or being Hispanic or, in some instances, being Asian American can provide one of many, many tips that will put
是的。
you Yes.
但你必须承认，如果它只是众多因素之一，那么在有些情况下，这将起到决定性作用。
But you will have to concede that if it provides one of many, then in some cases, it will be determined.
我承认。
I do.
我确实承认这一点。
I do concede that.
所以我们正在讨论种族作为哈佛大学录取的决定性因素。
So we're talking about race as a determining factor in admission to Harvard.
对于某些高度合格的申请者来说，种族可以成为决定性因素，就像在某一年哈佛拉德克利夫乐团需要双簧管演奏者时，双簧管演奏者身份会成为关键因素一样。
Race in some for some highly qualified applicants can be the determinant factor just as being the a, you know, an oboe player in a year in which the Harvard Radcliffe Orchestra needs an oboe player will be the tip.
我们并没有为双簧管演奏者打过内战。
We did not fight a civil war about oboe players.
我
I
我们确实打过内战来消除种族歧视，这就是为什么这个问题备受关注。
We did fight a civil war to eliminate racial discrimination, and that's why it's a matter of of of considerable concern.
我认为重要的是，你需要确定仅基于肤色的加分是否基于某种刻板印象，当你说这会带来观点多样性时。
And I think it's important to for you to establish whether or not granting a credit based solely on skin color is based on a stereotype when you say this brings diversity of viewpoint.
在特定情况下，它可能根本不会带来观点的多样性。
It may not bring diversity of view in a particular case at all.
首先，观点多样性虽然是哈佛重视并追求的，但远非我们想要一个真正多元化班级的唯一理由。
Well, number one, viewpoint diversity, while Harvard values it and seeks it, is not the only risk by by far the only reason for wanting a genuinely diverse class.
我们希望班级在背景、兴趣等多方面具有多样性，而不仅仅是观点上。
We want a diverse class for backgrounds and interests and lots of things other than just viewpoint.
如果我们采用例如今早每位辩护律师都讨论过的例子——考虑种族因素当学生主动提及种族经历时，您认为如何？
If we were to use, for example, the the the example that has been discussed, I believe, for every other advocate that has stood up this morning, you know, and asked, what about taking race into account if the student writes about it?
事实是哈佛大学正努力避免在多元代际的班级中，仅因种族身份和经历被强烈提及而构建表面化的种族多样性。
The fact of the matter is Harvard is attempting not to have among among a class of that is diverse among many generations, a class that is racially diverse only for people for whom their racial identity and their racial experiences is of such compelling importance that they write about it.
对吧？
Right?
您关于黑人学生可能持有与刻板印象截然不同观点的假设，实际上正是科罗娜报告中讨论的主题。
The the your hypothetical about the black student who may have very different views than the stereotypical, the stereotype of what a black student will have was in fact is in fact the subject of the that's discussed in the corona report.
科罗娜报告在分析多样性的重要性和维度时，引用了理查德·莱特出版书籍中某个具体班级的真实案例。
The corona report gave in its analysis of the importance and dimensions of diversity an actual example that came from Richard Light's book, published book, which had a particular class.
这个班级恰好有三名非裔美国学生。
It happened to have three African American students in it.
其中一名非裔学生在讨论中发表观点后，另一名非裔学生当即表示：『这不能代表我的观点』。
An African American student gave an answer in a discussion, which another African American student said, that is not my view.
『我的观点恰恰相反』
My view is quite the opposite.
第三个人说，我本来没打算发言，但我持完全不同的观点。
And a third one said, I wasn't actually gonna say anything, but I have a completely different view.
这对讨论中的非裔美国人和其他人来说，都是一次难以置信的学习体验。
That was an incredible learning experience not only for the non African Americans in the discussion, but for them.
而这正是哈佛大学试图达到的效果。
And that's what Harvard is trying to get at.
很抱歉我讲了这么久。
I'm sorry for taking so long.
不。
No.
不。
No.
我很感谢你的回答。
I appreciate your answers.
托马斯大法官？
Justice Thomas?
阿利托大法官？
Justice Alito?
在巴基案中，鲍威尔大法官选择将哈佛大学的招生计划作为范本，这一选择在过去五十年间产生了巨大影响。
In, in Baki, Justice Powell chose Harvard's admission program as a model, and that selection has had an enormous effect for the last fifty years.
哈佛大学曾与多所高校共同向巴基案提交了案情摘要。
Harvard submitted a brief in Bocke along with a number of other colleges.
于是我重新查阅了这份摘要，注意到其中提到哈佛的招生计划可追溯至三十年前，但完全未提及洛厄尔校长或哈佛在1920年代的做法。
So I went back and I looked at it and noticed that the brief talked about Harvard's program going back thirty years, but it didn't say anything about president Lowell or what Harvard had done back in the nineteen twenties.
所以我的问题是：哈佛是否向鲍威尔大法官兜售了虚假商品？
So my question is, did Harvard sell justice Powell a bill of goods?
您认为如果鲍威尔大法官了解整体评估制度的起源，他还会将哈佛招生计划奉为全国典范吗？
Do you think justice Powell would have championed would have held up the Harvard program as a model, as an exemplar for the whole country if he knew about the origins of the holistic program?
鲍威尔大法官采纳了哈佛对其招生流程的说明——即当时及此前三十年间，该校仅将种族作为众多因素之一来真正实现学生群体的多样性。
Justice Powell used the har used Harvard's description about its admissions process and the limited extent to which it was then and for the past thirty years had been using race as one factor among many to achieve genuine diversity in its student body.
哈佛提交的案情摘要...鲍威尔大法官采纳与否并非基于哈佛在内战前是否在本科招生中倡导多样性，正如不会因其百年前的历史污点而否定现行制度。
Harvard the Harvard brief justice Powell didn't take it or not take it because prior to the civil war, Harvard College was a leader in encouraging diversity in its undergraduate applications any more than the fact that it had a terrible stain on its history a hundred years ago.
它是按照当时呈现的内容被采纳的，如实反映了哈佛大学招生流程的过去与现状。
It was taken for what it was presented as, and it was what it was and it fairly presented how the Harvard admissions process worked then and works now.
索托马约尔大法官？
Justice Sotomayor?
律师，我有两个问题要问你。
Counsel, there are two questions that I wanna get to that were asked of you.
第一个是阿利托大法官关于个人评分偏低的问题。
The first was justice Alito's about the poor personal, rating.
在我看来，申诉方声称哈佛大学歧视亚裔美国人，因为其使用的主观标准影响了个人评分。
Seems to me that petitioner claims that Harvard's discriminating against Asian Americans because it uses subjective criteria that's affecting the personnel ratings.
这是我对该问题的理解。
That's how I think I read his question.
对吗？
Correct?
所以问题不在于它在招生时使用了种族因素。
So it's not that it's using race in admitting people.
问题在于它使用了被篡改的个人评分。
It's that it's using a corrupted personnel rating.
对吗？
Correct?
呃，我不想代表大法官发言，我不想擅自代表阿利托大法官发言。
Well, I I don't wanna speak for justice I don't wanna presume to speak for justice Alito.
我
I
同意。
agree.
可以公平地说，这种对个人评分的批评
It is is fair to say that the criticism of the this the personal rating
没错。
Right.
是否涉及所有评分中——尤其是个人评分中——所谓的'主观性'问题？
Relates to the, quote, subjectivity that is involved really in all of the ratings, but particularly in the personal rating?
嗯，这些评估会使用诸如'非领导者'、'不关心'、'无所谓'之类的词语。
Well, it goes it the evaluations that use words like not a non leader, not caring, not whatever.
是的。
Yes.
对。
Yeah.
没错。
Yeah.
这适用于所有种族。
It applies to all races.
对吧？
Correct?
当然。
Of course.
所有种族的申请者也会收到这些评分。
All races, applicants receive those ratings as well.
对吗？
Correct?
我认为专家想说的是，这些孤立的数据本身并不能说明任何问题。
I think what the expert was saying, the fact that you have these numbers standing alone don't tell you anything.
对吗？
Correct?
你必须综合考虑所有输入因素才能判断为什么正确。
You have to look at all the input that goes into why Correct.
无论是否存在歧视。
Whether there was discrimination or not.
对吗？
Correct?
正确。
Correct.
好的。
Alright.
那么单看这些数字说明不了任何问题？
So the numbers alone tell you nothing?
那那是对的。
That's that's right.
数字可以说明问题。
The numbers can tell you.
你可以统计10万份申请，查看初审评分者的打分，将其与申报种族进行比对，然后得出一个特征表明：哎呀，在这15万份申请中（扣除所有ALDC申请后），看起来平均而言，亚裔申报者的得分是这个数，白人申报者的得分是那个数。
You could you can tote up a 100,000 applications and look at what the first reader said scored and measure it against declared race and come up with a feature that says, gee, across these 150,000 or, in this case, 150,000 minus all the ALDCs, it looks like, you know, on average, Asian declared Asian Americans have this number, and self declared whites have this number.
这完全无法解释为什么给出这个评分，更不用说...
It tells you nothing about why that number was given any more than why
我不想打断你，
And I don't wanna cut you off,
但我想说不是这样的。
but I wanna get No.
我我所以
I I And so
它没有告诉你原因，也没有证据显示原因。
it doesn't tell you why, and there was no proof to show why.
地方法院发现那个数字并不能证明存在歧视。
District Court found that that number did not prove discrimination.
对吗？
Correct?
有实际证据表明它并不反映歧视。
There was actual proof that it did not reflect discrimination.
有专家进行了多维度分析，研究了非学术指标，结果显示例如在学术成绩得1或2分的申请者中，亚裔美国人获得的教师评分低于白人申请者，升学顾问评分也存在同样情况。
There was a multi there was expert analysis on on on multidimensionality, and that looked at the nonacademic index that showed that, for example, white applicants who got a one or a two on academics, and Asian Americans who got one or two on academics, For whatever reason, the latter group got lower teacher ratings than the former, and same with guidance counselor ratings.
它没有告诉你原因。
It doesn't tell you why.
这不能推导出，当然更不能推导出哈佛大学存在歧视的结论。
It doesn't permit, and it certainly doesn't permit an inference that Harvard is discriminating.
地方法院在认定不存在任何种族歧视或针对亚裔美国人的歧视方面，已经给出了最明确的结论。
The the district court could not have been more definitive about the absence of any racial discrimination or discrimination against Asian Americans than it was.
民权办公室在1990年代初也有同样的发现。
A finding that the office of civil rights in the early nineteen in in in 1990 also found.
好的。
Alright.
你能处理一下模拟d吗？
Could you deal with stimulation d?
我想你刚才是在解释为何地区法院拒绝了那个模拟，模拟...
I think that you were trying to explain why the district court rejected that stimulation, simul Simulation.
模拟。
Simulation.
抱歉。
I'm sorry.
模拟数据是有意义的。
Simulation, numbers as meaningful.
你能完成你的回答吗？
Could you finish your answer?
是的。
Yes.
具体来说，我会向法庭引述联合附录第208至220页——这是地区法院对此的裁决，以及第73至79页——这是上诉法院的意见，还有第1307至1325页——这是史密斯委员会对此的分析。
And, you know, in particular, I'll, you know, I'll I'll point the court to because I'm not gonna be able to do it as well as the district court, to pages two zero eight to two twenty of the joint appendix, which is the district court's findings on this, and 73 to 79, which is the court of appeals, and 13 o seven to thirteen twenty five, which is the Smith Committee's analysis of this.
但基本上，正如我所说，地区法院发现模拟方案d将需要付出重大代价（我现在手边没有确切的引述），几乎在哈佛重视的每个维度上都会造成显著下降。
But, basically, what the district court found was, as I said, that simulation d would require significant sacrifices, I don't have the quote right in front of me now, on almost every dimension that Harvard values, including a substantial decline.
我们讨论的不是SAT分数从第90百分位下降到第98百分位这种程度的下降。
We're not talking about s a decline in SAT scores are going from the 90 percentile to the ninety eighth percentile.
我们正在讨论法院认定的以下几点。
We're talking about the following things that the court found.
入学班级中学术水平为一或二级的成熟学生比例将下降17%。
The the percentage of mature the matriculating class that would be academic ones or twos would go down by 17%.
所有其他因素都会下降至少10%，介于10%到22%之间。
Every other factor would go down by at least 10% between 1022%.
对人文学科感兴趣的新生人数——这是哈佛大学给出的一个重要指标，由于哈佛最近无法录取那些想主修人文学科的优秀学生——将下降14%。
The number of app of matriculates interested in majoring in the humanities, which is a major tip that Harvard gives because of Harvard's recent inability to matriculate excellent students who want to major in the humanities would go down by 14%.
非洲裔美国人的录取人数将从14%降至10%。
The number of African Americans admitted would go down from 14 to 10%.
正是所有这些后果的综合作用，使地区法院确认这不是一个可行、有效且种族中立的替代方案。
It was the whole confluence of all of those consequences that led the district court to confirm that it was not a workable, effective, race neutral alternative.
嗯，对于戈萨奇大法官来说，似乎这些其他事项都不构成令人信服的利益。
Well, it seems that for justice Gorsuch, none of those other things are compelling interest.
我们该如何回应这一点？
And how do we respond to that?
他可能会说
He would say
我不确定是否该将此观点归因于戈萨奇大法官。
I'm not sure I'm ascribing that to justice Gorsuch.
呃，我...但他似乎说过艺术博物馆并不重要。
Well, I I but he seemed to say an art museum is not important.
因此，如果矩阵显示对艺术感兴趣的人数急剧下降，这可能会引起哈佛的关注。
So if the matrix shows that those interested in the arts falls to falls dramatically, that might be of concern to Harvard.
我认为这很有价值。
I think it's valuable.
这很可能是个值得关注的问题。
It might very well be a concern.
这会不会导致持怀疑态度、严格审查的法官认为，这套方案根本行不通？
Would it would it lead would it lead a judge skeptically applying strict scrutiny to say, oh, it just doesn't work.
你们将失去艺术博物馆，或者取消壁球队，又或者失去校友捐款。
You're not gonna have an art museum, or you're not gonna have a squash team, or you're not gonna have, you know, alumni contributions.
这些都不是真正的原因。
It wasn't any of those things.
把这些说成是方案未能实现种族中立的理由，简直是对事实的歪曲。
It's a caricature to say that those were the reasons why this particular thing wasn't a race neutral alternative.
现在我想说，如果你认为——尽管已有调查结果——地方法院和上诉法院没有正确适用应有的严格审查和精准裁量分析，那好。
Now I just wanna say, if you think, notwithstanding the findings, that the district court and the court of appeals didn't properly apply the kind of strict scrutiny and narrow tailoring analysis that it should have, okay.
那就发回重审。
That's a remand.
我不认为记录会支持这一点。
I don't think the record will bear that out.
这不应成为推翻数十年宪法先例的理由，这些先例一直支持法院所认定的——维持这种学习环境是国家的重要利益。
It is not a reason to dispense with decades of constitutional precedent that has allowed all of these what this court has properly considered to be a compelling national interest in having this kind of learning environment.
谢谢。
Thank you.
卡根大法官？
Justice Kagan?
韦克斯曼先生，今天提出了很多问题，我认为这些都是关于最终目标的重要问题。
Mister Wexman, there have been a lot of questions today, and I take these to be important questions about what is the endpoint.
如果我们能通过种族中立机制而非种族意识机制实现种族多样性，我们就应该这么做。
If if we can achieve racial diversity through neutral mechanisms rather than through race conscious mechanisms, we should.
我们已多次申明这一点。
We've said that many times.
所以问题在于：我们何时能断言可以通过这种方式实现种族多样性目标？
So the question is, when can we say that we can achieve our racial diversity goals in that way?
我想提出一个包含两部分的问题，并希望你将一个假设融入这两个部分中。
And I guess I have a two part question, and and then an assumption that I want you to bake into the two parts.
第一部分是，哈佛大学正在采取哪些持续性的措施来验证这一假设的真实性？
The first is, what is Harvard doing in an ongoing way to test whether that is true?
第二部分是，哈佛大学是否在这一维度上取得了任何进展？
And the second is, does Harvard see any progress along that dimension?
换句话说，正如原告方律师所言，哈佛大学仍在给予种族因素与以往同等程度的优先考量。
In other words, I think it was said by petitioner's counsel, oh, Harvard is doing you know, it's putting this is is is is using as great a preference as it ever did.
问题在于，随着时间的推移，哈佛大学是否发现使用种族意识手段的必要性有所降低？
And the question is, over time, has Harvard found that it has become less necessary to use race conscious, means or not?
现在我要你融入这个假设：我认为原告方主张的是——这点很重要——即使采用种族中立方法的部分原因是为了实现种族多样性也无关紧要。
Here's the assumption that I want to have you baked into this, which is I take petitioners to be saying, and I think that this is an important thing, that, it doesn't matter if some part of the reason for adopting race neutral approaches is to achieve racial diversity.
我认为他们对此表述得非常明确。
I think that they very clearly said that.
虽然我不确定这与他们的法律论点如何契合，但他们的确明确表达了这一观点。
I'm not sure I understand why given their legal arguments, but I think that they very clearly said that.
那么假设你可以坐下来讨论，我们正在尝试找出使用何种种族中立机制，而部分目标是为了实现种族多样性。
So assume that you can, you know, sit down and say, we're we're we're we're trying to figure out what race neutral mechanisms to use, and part of the goal is to achieve racial diversity.
哈佛大学正在采取什么措施来回答这个问题，是否取得任何进展？
What is Harvard doing to answer that question, and is it any closer?
我清楚地记得您问题的第二部分。
I have firmly in mind the second part of your question.
如果我没有同时回答第一部分，请提醒我。
If I don't also answer the first, please remind me.
本案证据表明，哈佛大学数十年来一直采取种族意识之外的其他措施来提高多样性水平，包括民族和种族多样性，这些内容实际上在史密斯委员会报告、史密斯院长的证词以及调查结果中都有讨论。
The evidence in the case is that for decades, Harvard has been taking steps other than the conscious other than race consciousness to increase the level of diversity, including ethnic and racial diversity, and these are discussed actually in the Smith committee report and the and Dean Smith's testimony and in the findings.
例如，在Grutter案之后（实际上在此之前），哈佛就大幅增加了资源投入，用于拓展与那些帮助并提升少数族裔及社会经济地位低下学生教育潜力组织的合作关系。
It, for example, in the wake of Grutter and actually before, substantially increased the amount of resources that it put in outreach in partnering with organizations that that assist and, you know, advance the educational potential of minority and low socioeconomic students.
哈佛在吸引更多申请者方面取得了一定成效，不仅来自少数族裔，还包括那些真正有资格就读哈佛的少数族裔申请者。
It has it has achieved some success in in in getting additional applications, not just from minorities, but from minority applicants who are actually really qualified to attend Harvard.
哈佛考虑过，也许大幅增加经济援助是提高这一比例的方法，本案中也有相关证据。
It thought about, well, maybe a way to increase this is to substantially increase our financial aid, and the there's evidence in the case.
实际上有一张精美的图表，展示了过去二十年间不同时间点经济援助水平的变化，以及申请班级和入学班级在种族多样性方面的变化。证词和研究结果表明，这在某种程度上产生了影响。
There's actually a beautiful chart that shows how the level of financial aid went up at various points over two decades and what happened with respect to the racial diversity of the applicant class and the matriculating class and what the testimony showed and the findings was it made a difference to a point.
但超过某个临界点后，就不再产生任何效果了。
After a certain point, it no longer made any difference.
哈佛验证了关于其提前行动计划的假设。
Harvard tested the proposition that it's early action program.
这与大多数学校的提前决定不同（因为学生无需承诺入学），但通过录取相当比例（约20%或25%）在学年早期提交申请的学生，实际上对少数族裔申请者和低收入背景申请者造成了不利——因为他们缺乏相应的资源、升学指导以及考试准备等条件来充分利用这种机会。
It's it's not early decision the way that most schools are because you're not committed to it, but that by admitting a significant percentage, I don't know, 20 or 25% of its class for people who applied, you know, early early on in the academic year, it was disadvantaging minority applicants and applicants from low socioeconomic circumstances because they didn't have the kind of resources, guidance counselors, and test prep, and all that sort of stuff to be able to take advantage of it.
哈佛最终终止了该计划，并呼吁其他大学跟进——仅保留两项例外。
They they they ended it and asked other universities to do the same thing with two exceptions.
但没有一所学校效仿。
No one did.
五年后的研究结果发现，这产生了反效果。
And what they found at the end of five years was that it had the opposite result.
即导致他们更难招收和录取代表性不足的少数族裔学生。
That is it made it more difficult for them to recruit and matriculate underrepresented minorities.
记录中还有哈佛大学采取的其他一系列措施，其中一些取得了显著成效。
And there were there were a bunch of other things in the record about things that Harvard has done, some of which have had substantial success.
因此，认为哈佛大学固守成规、永远以同样方式行事的观点是完全错误的。
And so the notion that Harvard is doing things the same way and is always gonna do the same things the same way is just wrong.
哈佛大学完全认可并赞同本院在格鲁特案中的声明，即'与这一理念相关的严重司法问题'
Harvard is Harvard completely recognizes and endorses this court's statement in Grutter that, quote, there are serious problems of justice connected with the idea
偏好本身。
preference itself.
这就是为什么它坚持要通过尽可能种族中立的方式，来实现所有令人信服的
That's why it holds itself why it is attempting to achieve all of the compelling
真正多元化学生群体所带来的益处。
serious benefits of of a genuinely diverse student body in the most race neutral way that it can.
至于这是否构成您问题的第一部分，哈佛大学实际上正在定期评估其多元化进程、多元化效益、所需改进措施，以及还能采取哪些种族中立的改进方案。
And in terms of I don't know if this is the first part of your question, but Harvard is actually attempt is measuring how it is doing in terms of diversity and the benefits of diversity and what needs to be done and what other things can be done in a race neutral way on a very regular basis.
我可以向您提供您所关心的数据相关数据。
And I I can give you the data on you know, with respect to either.
关于 Bayt 播客
Bayt 提供中文+原文双语音频和字幕，帮助你打破语言障碍，轻松听懂全球优质播客。