Speaker 1: The Justice Department is planning to investigate and sue universities
Speaker 1: over affirmative action admissions policies that determine that determined discrimination
Speaker 1: against white applicants. According to a document obtained by The
Speaker 1: New York Times, the project will not operate out of
Speaker 1: the Civil Rights Divisions Educational Opportunity Section, where career Justice
Speaker 1: attorneys oversee cases on universities, but instead in the front
Speaker 1: office of the division, where the Trump administration's political appointees work.
Speaker 1: My guest is Casey Johnson, a professor at Brooklyn College. Casey,
Speaker 1: let's start with the Supreme Courts position on affirmative action.
Speaker 1: What is it? The Court has said that, under limited circumstances,
Speaker 1: colleges and universities can use race in the admissions process.
Speaker 1: They can't use it as a quota, they can't have
Speaker 1: a large numerical scale, but in what universities often call
Speaker 1: a holistic environment, which is that race can be used
Speaker 1: as one of a number of factors to tip up
Speaker 1: an applicants uh candidacy in the admissions process. There have
Speaker 1: been three decisions, one in eight one in two thousand three.
Speaker 1: The most recent this Fisher decision out of the University
Speaker 1: of Texas. So there's some limitations on what universities can do,
Speaker 1: but they they are allowed to use race in the
Speaker 1: in the process. So what do you envision this investigation
Speaker 1: will entail One of the questions. The question of of
Speaker 1: affirmative action and higher education has been something that's divided
Speaker 1: liberals and conservatives for forty years. This is why it's
Speaker 1: constantly gone back to the court. The conservative argument is
Speaker 1: that despite these decisions from the Supreme Court saying you
Speaker 1: can't use quotas, that effectively what elite universities have done
Speaker 1: is to use quotas. If you look at the percentage
Speaker 1: of students African American or Hispanic students at Harvard or Yale,
Speaker 1: it's roughly the same percentage every year. So the argument
Speaker 1: that I think is behind the Attorney General's claim here
Speaker 1: is that if the government can get inside these university
Speaker 1: admissions offices, what they will discover, and again there's no
Speaker 1: hard evidence of this um what they'll discover is that
Speaker 1: universities are going beyond the limitations of the Supreme Court
Speaker 1: has said uh in tipping up the scales for for Africa,
Speaker 1: mostly African American and Hispanic. So casey, what kind of
Speaker 1: evidence would show that are they going to be going
Speaker 1: through the the the essays they submit, their extracurriculars, their numbers,
Speaker 1: and the s A T s. You know all that.
Speaker 1: There there are a couple of lawsuits, one filed against Harvard,
Speaker 1: one filed against the University of North Carolina on behalf
Speaker 1: of Asian American students, and my sense is that those
Speaker 1: lawsuits give the kind of map as to what we
Speaker 1: could see in these sorts of approaches. And what those
Speaker 1: lawsuits argued was that colleges seem to admit Asian American
Speaker 1: students with a much higher essay average S A T
Speaker 1: than African American or Hispanic students, with white students in
Speaker 1: the in the middle. So I think, what what will
Speaker 1: see the Justice Department asking for again if these lawsuits
Speaker 1: actually advanced, which is which is not certain at this stage,
Speaker 1: would be to say, all right, if you have a candidate,
Speaker 1: say an Asian American candidate with an s A T
Speaker 1: score that's three hundred points higher than an African American candidate,
Speaker 1: what was the college's real justification for admitting the African
Speaker 1: American candidate? Was it that the African American candidate had say,
Speaker 1: great extracurricular is a compelling life story that there was
Speaker 1: a real reason here or was this as part of
Speaker 1: a of a quota, And I suspect what they would
Speaker 1: be looking for are less things like the the candidates
Speaker 1: essays than internal correspondents amongst the admissions offices or university
Speaker 1: administrators urging certain kinds of candidates to be admitted. How
Speaker 1: does this fitting in with the approach of the Justice
Speaker 1: Department's Civil Rights Division under the last few administrations. This
Speaker 1: this is a section of the US government. We live
Speaker 1: in a polarized society, but it's it's a section of
Speaker 1: the US government that has been particularly polarized. In the
Speaker 1: Bush administration, this tended to go to they're very conservative appointees.
Speaker 1: Here in the Obama administration, there were very liberal appointees
Speaker 1: in this office. So in a lot of ways, this
Speaker 1: is you know, there's been a lot of different things
Speaker 1: during the Trump administration, but but this is sort of
Speaker 1: politics as normal. Uh, this is this is a part
Speaker 1: of the U. S Government that tends to go to
Speaker 1: the more liberal or the more conservative elements of the coalition.
Speaker 1: So I suspect that if you know, if Ted Cruz
Speaker 1: had been elected president or John Kasik had been elected
Speaker 1: president last time, we would have been seeing more or
Speaker 1: less the same kind of thing from the Justice Department.
Speaker 1: This is a pretty mainstream conservative position. And would you
Speaker 1: if I asked you to predict, would you predict that
Speaker 1: lawsuits suits with will come out of this Lasses are
Speaker 1: almost certainly going to come out of it. And the
Speaker 1: interesting question here is that when will These lasses are
Speaker 1: almost certainly going to make their way to the Supreme Court.
Speaker 1: At some point the current Supreme Court, these lawsuits likely
Speaker 1: would be defeated because Justice Kennedy in the Fisher decision
Speaker 1: signaled in a greater acceptance of affirmative action than he
Speaker 1: had in the past. But it's entirely possible that these
Speaker 1: lawsuits could make it to the Supreme Court after Justice
Speaker 1: Kennedy has departed. And if that's the case, then then
Speaker 1: all bets would be off. Thank you for being on
Speaker 1: Bloomberg Law. That's Casey Johnson. He's a professor at Brooklyn College.