WEBVTT - Affirmative Action Not on Trial in Harvard Case

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com Slash podcasts. Harvard University is

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<v Speaker 1>in a Boston federal court defending itself against claims of

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<v Speaker 1>racial bias in admitting Asian American students. Speaking with Bloomberg

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<v Speaker 1>and Ivy, founder of Ivy Consulting, explained the importance of

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<v Speaker 1>the case. Affirmative action has been upheld as latest two

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<v Speaker 1>thousand and sixteen, but that was when Justice Kennedy was

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<v Speaker 1>still the swing vote, and of course he's been replaced

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<v Speaker 1>by Justice Kavanaugh, so the admissions landscape could look very

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<v Speaker 1>different depending on how this case turns out. Joining me

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<v Speaker 1>is the Least Body professor at Rutgers University Law School

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<v Speaker 1>and founder and executive director of the Inclusion Project at least.

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<v Speaker 1>The suit was brought by a group opposing affirmative action

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<v Speaker 1>called Students for Fair Admissions. Explain their claims about Harvard

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<v Speaker 1>engaging in racial balancing of Asian Americans well. Their claim

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<v Speaker 1>is that Harvard sets a cap on the number of

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<v Speaker 1>Asian Americans who are admitted to the university. UM. That

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<v Speaker 1>claim is going to have to be sorted out by

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<v Speaker 1>the District Court. We know that Asian Americans have been

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<v Speaker 1>admitted UM an increasing percentage number of Asian Americans have

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<v Speaker 1>been admitted over the last eight years or so. Two

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<v Speaker 1>they're now of the admitted class UM. So their their

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<v Speaker 1>claim is that, uh, there's a limit that has been

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<v Speaker 1>set UM. If that is in fact true, that is unlawful.

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<v Speaker 1>And as I said, the district cord is going to

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<v Speaker 1>have to sort that out. But I think it's important

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<v Speaker 1>to understand what this case is really about and the

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<v Speaker 1>significance of the case. Uh. What the plainists are arguing

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<v Speaker 1>for is for colleges essentially around the country of this

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<v Speaker 1>case cost of the Supreme Court and the Supreme Court

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<v Speaker 1>where to strike down affirmative action. Their claim that that

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<v Speaker 1>colleges around the country should not be able to consider

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<v Speaker 1>race and they not. They should also not, uh the

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<v Speaker 1>they should not have a process in which admissions officers

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<v Speaker 1>are aware of or can even learn the race or

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<v Speaker 1>ethnicity of a particular applicant. So this is a very

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<v Speaker 1>extreme case. It goes against settled law. But the goal

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<v Speaker 1>here is clearly to overturn that law. And let's put

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<v Speaker 1>the suit into even a little more context. Affirmative action

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<v Speaker 1>has been under assault, it seems like since it first began,

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<v Speaker 1>and it's often on the verge of being affirmed by

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<v Speaker 1>the Supreme Court by a slight vote. As we know

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<v Speaker 1>that Justice Kenny was the swing vote. So you put

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<v Speaker 1>it into context of the various cases at the Supreme

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<v Speaker 1>Court on affirmative action. Sure so, Um, we can start

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<v Speaker 1>by looking at the case the Bockey decision, which essentially

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<v Speaker 1>held that quote as the use of quotas and admissions

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<v Speaker 1>is unconstitutional. Um by Justice Powell, who was who was

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<v Speaker 1>sort of the Justice Kennedy of his day, concluded that

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<v Speaker 1>race could be considered as one of many different factors

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<v Speaker 1>in the comprehensive admissions process, and he pointed to Harvard

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<v Speaker 1>as the model for how such an admissions process could

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<v Speaker 1>be implemented. Um. Twenty five years later, the Court in

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<v Speaker 1>two thousand three upheld again the use of race in

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<v Speaker 1>admissions as one of many different factors. That was a

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<v Speaker 1>caste called Rooter versus Bollinger Um. In two thousand sixteen,

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<v Speaker 1>the Court again in Fisher Um concluded that diversity student

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<v Speaker 1>diversity UH was an important constitutional value. Um. It it's

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<v Speaker 1>held uh it hap held the challenge against the University

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<v Speaker 1>of Texas. UM. So we have a pre significant body

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<v Speaker 1>of law in which the Court has found on different

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<v Speaker 1>occasions that uh, the educational benefits of student diversity are

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<v Speaker 1>constitutionally compelling. There is another aspect to that, which is

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<v Speaker 1>he has to make sure that it's being constitutionally implemented. UM.

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<v Speaker 1>But what this case is seeking to do is essentially

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<v Speaker 1>to say that you can't use any race at all

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<v Speaker 1>in any context. UM. You've said that the plaintiffs are

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<v Speaker 1>going back to the basics ensuing Harvard. What do you

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<v Speaker 1>mean by that? Well, as I as I mentioned a

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<v Speaker 1>moment ago Um, the Harvard admissions process was cited by

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<v Speaker 1>just As Powell back in the nineteen of the eight

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<v Speaker 1>Bockey decision as the model example of how race could

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<v Speaker 1>be constitutionally used, and so in in suing Harvard, UM, essentially,

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<v Speaker 1>the plaintiffs are are pointing to our are trying to

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<v Speaker 1>overturn a plan that has been cited in various contexts

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<v Speaker 1>by the Court as being as being a model plan. UM.

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<v Speaker 1>Harvard also is going to attract a lot of attention.

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<v Speaker 1>Harvard is defended in a case is going to attract

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<v Speaker 1>a lot of attention, UM, because it does set the

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<v Speaker 1>standard for how admissions is done. And so by suing

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<v Speaker 1>Harvard UM, the plainests are going after a very big fish.

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<v Speaker 1>And we also have the danger that UH if the

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<v Speaker 1>Harvard UM case UH is successful, that it could have

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<v Speaker 1>an enormous chilling effect around the country UH in university

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<v Speaker 1>admissions in terms of the consideration of race UM. And

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<v Speaker 1>so it's it's a very deliberate effort UH by this outfit,

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<v Speaker 1>which is run by um Ed Bloom, who is responsible

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<v Speaker 1>for the earlier challenges against the University of Texas that

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<v Speaker 1>I mentioned. He's also someone who brought the case challenging

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<v Speaker 1>the voting rights back that gutted protections from minority voters. UM.

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<v Speaker 1>This is not a person who cares about creating opportunities

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<v Speaker 1>for people of color around the country. The Justice Department's

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<v Speaker 1>position has changed from the Obama administration to the Trump administration.

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<v Speaker 1>What effect does the Justice Department have in this area? UM,

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<v Speaker 1>Sorry I didn't hear. I didn't under the question. The

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<v Speaker 1>Justice Department has taken a position in this case that

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<v Speaker 1>is different from the position that the Obama administration took.

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<v Speaker 1>What effect does it have when the Justice Department weighs

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<v Speaker 1>in that way? Oh? Sure so, UM. The the Justice

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<v Speaker 1>Department rescinded certain UM regulations that UH that UH laid

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<v Speaker 1>out how race could be constitutionally considered. The Justice Department

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<v Speaker 1>does not have the power to change the law. The

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<v Speaker 1>law is established by the U. S. Supreme Court. UM.

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<v Speaker 1>Of course, it does have the chilling effect when the

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<v Speaker 1>United States Justice Department weighs in UM in ways that

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<v Speaker 1>are adverse to affirmative action UM. But the law as

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<v Speaker 1>it currently stands UH clearly indicates that UM, a comprehensive

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<v Speaker 1>admissions process that includes race of one of many different

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<v Speaker 1>factors is constitutional. And the question is, in that kind

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<v Speaker 1>of admissions process where admissions officers do look at so

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<v Speaker 1>many different aspects an applicants identity, should race UH also

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<v Speaker 1>be included. And we are in a context, We've been

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<v Speaker 1>listening to that context for four hundred years where race

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<v Speaker 1>is very much a reality. And so to say that

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<v Speaker 1>in that context you can't take a considerative consideration of race,

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<v Speaker 1>all right, at least we'll have to leave it there.

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<v Speaker 1>But the case will be going on and we'll keep

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<v Speaker 1>following it. Lease Body, professor at Rutgers University Law School.

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<v Speaker 1>In August, President Trump's lead attorney, Rudy Giuliani discussed the

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<v Speaker 1>Mueller investigation on Fox News, talking about how it would

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<v Speaker 1>play in the mid terms. Well, I think if it

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<v Speaker 1>isn't over by September, then then we have a very

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<v Speaker 1>very serious um violation of the Just Department rules that

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<v Speaker 1>you shouldn't be conducting one of these investigations, uh in

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<v Speaker 1>the sixty day period. Now it's mid October, there are

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<v Speaker 1>just three weeks until the mid terms, and the Mueller

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<v Speaker 1>investigation is still going strong. Joining me is William Banks,

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<v Speaker 1>professor at Syracuse Universe State Law School. Bill Rudy Giuliani

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<v Speaker 1>predicted the end of the Muller investigation or threatened about

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<v Speaker 1>it time and time again. But Paul Maniford is now

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<v Speaker 1>cooperating with Mueller. Is that an indication that the investigation

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<v Speaker 1>is not coming to a conclusion anytime soon? I think

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<v Speaker 1>it's sure is you know mr has made a number

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<v Speaker 1>of claims and predictions that haven't turned out to be true.

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<v Speaker 1>There are no Justice Department rules that limit the investigation,

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<v Speaker 1>and the tendency of an election, and as we've discussed

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<v Speaker 1>many times, Mr Muller is simply going about his business

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<v Speaker 1>UH day by day and UH indictment by indictment and

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<v Speaker 1>letting the letting the facts and law lead them to

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<v Speaker 1>where they need to go. They have manifort to work

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<v Speaker 1>with here, and they're still awaiting sentencing and outcome on

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<v Speaker 1>some of the other indictments have been brought between the

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<v Speaker 1>Russians and others. According to Political Trump slam the Mueller

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<v Speaker 1>quote witch hunt on Twitter nearly fifty times since July fourth.

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<v Speaker 1>He manages is campaign rallies, Yet it seems to be

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<v Speaker 1>something that both Republicans and Democrats are avoiding talking about

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<v Speaker 1>as the campaign for the mid terms. Why that's seeming

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<v Speaker 1>disconnect Well, I think you know, there's a it's a

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<v Speaker 1>relatively quiet time now. The investigation, the Mueller's team is

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<v Speaker 1>is working to see what they can get from Manaford

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<v Speaker 1>and others to building case either on the instruction of

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<v Speaker 1>justice or on the conspiracy colusion side of things. And

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<v Speaker 1>there's simply not much to talk about. And obviously we've

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<v Speaker 1>had plenty of other things to talk about concerning partisan

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<v Speaker 1>politics with having on the nation and lots of other

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<v Speaker 1>issues pending the election. But this this thing is simply

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<v Speaker 1>going on. It has its own momentum, uh, and it's

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<v Speaker 1>not dependent on November six or any other magic date.

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<v Speaker 1>One thing that there is to talk about is that

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<v Speaker 1>CNN's reporting that Trump's lawyers are providing in the process

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<v Speaker 1>of providing written answers to a first round of questions

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<v Speaker 1>and several questions about potential collusion. How does it advance

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<v Speaker 1>Mueller's investigation to have written answers drafted by Trump's attorneys,

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<v Speaker 1>Probably not very much. Uh. You know, this is a

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<v Speaker 1>game that the president's lawyers have been playing with the

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<v Speaker 1>Mueller team from the beginning. The personalities of changed, the

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<v Speaker 1>presidents brought in new lawyers, and some lawyers have left.

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<v Speaker 1>There's now, you know, the White House counsels on his

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<v Speaker 1>way out and the presidents interviewing replacements for Don McGahn,

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<v Speaker 1>which I think we'll see yet more dynamics and uh

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<v Speaker 1>in the in the effort to either respond to or

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<v Speaker 1>not respond to Mueller's request for an interview of Trump.

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<v Speaker 1>This is going to primarily go to the possibility of

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<v Speaker 1>obstruction determinations, of course, but it could be important for

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<v Speaker 1>other aspects of the investigation as well. Turning out to

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<v Speaker 1>the White House Counsel's office, we know that Council Don

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<v Speaker 1>McGann is leaving his position, and he was regarded by

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<v Speaker 1>some as a restraining influence on Trump. The Washington Post

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<v Speaker 1>is reporting that Trump has chosen a conservative Catholic activists

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<v Speaker 1>and Washington lawyer Pat Chipoloney as his next White House

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<v Speaker 1>Council He's already been advising the president's personal lawyers on

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<v Speaker 1>Trump reportedly, what will this change mean in the approach

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<v Speaker 1>to Mueller. Well, I don't know much about Shibloney, but

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<v Speaker 1>I believe that it's going to, you know, play to

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<v Speaker 1>the sort of the hardball side of of dealing with

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<v Speaker 1>the Muller team. I think he'll be pretty tough and

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<v Speaker 1>pretty uh unwilling to cooperate and even to compromise on

0:12:57.040 --> 0:13:01.000
<v Speaker 1>providing materials to the investigators. I think at the same time,

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<v Speaker 1>we have to remember that the White House Council's job

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<v Speaker 1>involves much more than just dealing with the single investigation.

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<v Speaker 1>Mcgon had a very signal role in getting the Kavanaugh

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<v Speaker 1>nomination through the Senate ultimately, and then his legacy, of course,

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<v Speaker 1>in lining up lower court judges that's probably been the

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<v Speaker 1>president's single most important accomplishments so far. Off to see

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<v Speaker 1>whether the tip alone can do as well or whether

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<v Speaker 1>there's someone else in the team that will take over

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<v Speaker 1>that responsibility. Speaking and in the list of we'll have

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<v Speaker 1>to see. Most observers think that we'll see Trump firing

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<v Speaker 1>a G. Jeff Sessions after the mid terms, and the

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<v Speaker 1>Washington Post reported that Trump had talked to sessions chief

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<v Speaker 1>of staff Matt Whittaker about the job, and Trump hasn't

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<v Speaker 1>denied that Whittaker has a conservative record and path explain

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<v Speaker 1>what that might be. Well, you know, he's he's going

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<v Speaker 1>to replace Sessions. If he does, he's going to replace

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<v Speaker 1>him with someone conservative, to be sure, and looking for

0:14:12.800 --> 0:14:16.320
<v Speaker 1>someone with a lower profile, as would be the case here,

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<v Speaker 1>might serve his interest in uh, you know, not paying

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<v Speaker 1>much attention to the uh, the office of the Attorney General,

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<v Speaker 1>perhaps going beyond the Attorney General to try to interfere

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<v Speaker 1>again and investigation uh and dismissing Mueller. We'll see if

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<v Speaker 1>that might happen. It depends, of course, on what the

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<v Speaker 1>next steps are in the Mueller team. It's sort of

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<v Speaker 1>a cat and mouse game. And Bill just a quickly

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<v Speaker 1>here Whittaker. Would he have to be have a confirmation

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<v Speaker 1>hearing or is he already confirmed by the Senate and

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<v Speaker 1>so could just slide in there? No, he'd have to

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<v Speaker 1>be confirmed separately for this post. Okay, thanks so much

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<v Speaker 1>as always, William Banks, Professor at Syracuse University Law School.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg