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Speaker 1: The Justice Department is planning to investigate and sue universities

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Speaker 1: over affirmative action admissions policies that determine that determined discrimination

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Speaker 1: against white applicants. According to a document obtained by The

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Speaker 1: New York Times, the project will not operate out of

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Speaker 1: the Civil Rights Divisions Educational Opportunity Section, where career Justice

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Speaker 1: attorneys oversee cases on universities, but instead in the front

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Speaker 1: office of the division, where the Trump administration's political appointees work.

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Speaker 1: My guest is Casey Johnson, a professor at Brooklyn College. Casey,

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Speaker 1: let's start with the Supreme Courts position on affirmative action.

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Speaker 1: What is it? The Court has said that, under limited circumstances,

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Speaker 1: colleges and universities can use race in the admissions process.

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Speaker 1: They can't use it as a quota, they can't have

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Speaker 1: a large numerical scale, but in what universities often call

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Speaker 1: a holistic environment, which is that race can be used

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Speaker 1: as one of a number of factors to tip up

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Speaker 1: an applicants uh candidacy in the admissions process. There have

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Speaker 1: been three decisions, one in eight one in two thousand three.

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Speaker 1: The most recent this Fisher decision out of the University

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Speaker 1: of Texas. So there's some limitations on what universities can do,

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Speaker 1: but they they are allowed to use race in the

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Speaker 1: in the process. So what do you envision this investigation

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Speaker 1: will entail One of the questions. The question of of

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Speaker 1: affirmative action and higher education has been something that's divided

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Speaker 1: liberals and conservatives for forty years. This is why it's

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Speaker 1: constantly gone back to the court. The conservative argument is

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Speaker 1: that despite these decisions from the Supreme Court saying you

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Speaker 1: can't use quotas, that effectively what elite universities have done

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Speaker 1: is to use quotas. If you look at the percentage

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Speaker 1: of students African American or Hispanic students at Harvard or Yale,

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Speaker 1: it's roughly the same percentage every year. So the argument

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Speaker 1: that I think is behind the Attorney General's claim here

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Speaker 1: is that if the government can get inside these university

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Speaker 1: admissions offices, what they will discover, and again there's no

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Speaker 1: hard evidence of this um what they'll discover is that

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Speaker 1: universities are going beyond the limitations of the Supreme Court

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Speaker 1: has said uh in tipping up the scales for for Africa,

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Speaker 1: mostly African American and Hispanic. So casey, what kind of

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Speaker 1: evidence would show that are they going to be going

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Speaker 1: through the the the essays they submit, their extracurriculars, their numbers,

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Speaker 1: and the s A T s. You know all that.

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Speaker 1: There there are a couple of lawsuits, one filed against Harvard,

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Speaker 1: one filed against the University of North Carolina on behalf

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Speaker 1: of Asian American students, and my sense is that those

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Speaker 1: lawsuits give the kind of map as to what we

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Speaker 1: could see in these sorts of approaches. And what those

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Speaker 1: lawsuits argued was that colleges seem to admit Asian American

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Speaker 1: students with a much higher essay average S A T

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Speaker 1: than African American or Hispanic students, with white students in

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Speaker 1: the in the middle. So I think, what what will

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Speaker 1: see the Justice Department asking for again if these lawsuits

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Speaker 1: actually advanced, which is which is not certain at this stage,

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Speaker 1: would be to say, all right, if you have a candidate,

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Speaker 1: say an Asian American candidate with an s A T

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Speaker 1: score that's three hundred points higher than an African American candidate,

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Speaker 1: what was the college's real justification for admitting the African

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Speaker 1: American candidate? Was it that the African American candidate had say,

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Speaker 1: great extracurricular is a compelling life story that there was

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Speaker 1: a real reason here or was this as part of

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Speaker 1: a of a quota, And I suspect what they would

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Speaker 1: be looking for are less things like the the candidates

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Speaker 1: essays than internal correspondents amongst the admissions offices or university

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Speaker 1: administrators urging certain kinds of candidates to be admitted. How

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Speaker 1: does this fitting in with the approach of the Justice

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Speaker 1: Department's Civil Rights Division under the last few administrations. This

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Speaker 1: this is a section of the US government. We live

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Speaker 1: in a polarized society, but it's it's a section of

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Speaker 1: the US government that has been particularly polarized. In the

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Speaker 1: Bush administration, this tended to go to they're very conservative appointees.

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Speaker 1: Here in the Obama administration, there were very liberal appointees

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Speaker 1: in this office. So in a lot of ways, this

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Speaker 1: is you know, there's been a lot of different things

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Speaker 1: during the Trump administration, but but this is sort of

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Speaker 1: politics as normal. Uh, this is this is a part

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Speaker 1: of the U. S Government that tends to go to

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Speaker 1: the more liberal or the more conservative elements of the coalition.

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Speaker 1: So I suspect that if you know, if Ted Cruz

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Speaker 1: had been elected president or John Kasik had been elected

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Speaker 1: president last time, we would have been seeing more or

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Speaker 1: less the same kind of thing from the Justice Department.

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Speaker 1: This is a pretty mainstream conservative position. And would you

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Speaker 1: if I asked you to predict, would you predict that

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Speaker 1: lawsuits suits with will come out of this Lasses are

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Speaker 1: almost certainly going to come out of it. And the

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Speaker 1: interesting question here is that when will These lasses are

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Speaker 1: almost certainly going to make their way to the Supreme Court.

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Speaker 1: At some point the current Supreme Court, these lawsuits likely

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Speaker 1: would be defeated because Justice Kennedy in the Fisher decision

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Speaker 1: signaled in a greater acceptance of affirmative action than he

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Speaker 1: had in the past. But it's entirely possible that these

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Speaker 1: lawsuits could make it to the Supreme Court after Justice

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Speaker 1: Kennedy has departed. And if that's the case, then then

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Speaker 1: all bets would be off. Thank you for being on

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Speaker 1: Bloomberg Law. That's Casey Johnson. He's a professor at Brooklyn College.