WEBVTT - Corporate Crime Probes Will Ramp Up Under Biden

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<v Speaker 1>This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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<v Speaker 1>The prosecution of white collar crimes fell during the Trump administration,

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<v Speaker 1>but experts are anticipating a ramp up in enforcement in

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<v Speaker 1>a Biden Jostice department that would return the government to

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<v Speaker 1>its past practice of scrutinizing corporate wrongdoing. The Trump administration

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<v Speaker 1>professed to being tough on white collar crime. Here's former

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<v Speaker 1>Deputy Attorney General Rod Rosenstein in a speech at n

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<v Speaker 1>y U Law School in Corporate enforcement is an important

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<v Speaker 1>focus of our department's criminal work, as well as our

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<v Speaker 1>civil work. Investigations of corporate fraud and corruption are essential

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<v Speaker 1>to promote the rule of law. People who do business

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<v Speaker 1>in America need to know that our laws will be enforced. However,

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<v Speaker 1>the prosecution of securities fraud, antitrust violations, and other such

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<v Speaker 1>crimes dropped about thirty under President Trump as compared to

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<v Speaker 1>President Obama, according to Syracuse University's Transactional Records Access Clearinghouse.

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<v Speaker 1>My guest is Brandon Garrett, a professor Duke Law School,

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<v Speaker 1>tell us about the prosecution of corporate crime and the

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<v Speaker 1>Trump administration as compared to prior administrations. Joining me is

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<v Speaker 1>Duke University law professor Brandon Garrett tell us about the

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<v Speaker 1>prosecution of white color crime during the Trump administration relatively

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<v Speaker 1>speaking to prior administrations. Over the course of Obama administration,

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<v Speaker 1>corporate prosecutions continued to rise in both number and their

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<v Speaker 1>size and significance. They had been doing that during the W.

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<v Speaker 1>Bush administration, but after the financial crisis, there were just

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<v Speaker 1>enormous number of cases of large ones to bring and

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<v Speaker 1>corporate crime became a bigger and bigger priority at the

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<v Speaker 1>Department of Justice. Tougher guidelines were and adopted, and that

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<v Speaker 1>change was reflected in the multibillion dollar resolutions. The type

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<v Speaker 1>of resolutions and moved from out of court settlements to

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<v Speaker 1>more in court settlements. We saw something really different when

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<v Speaker 1>they change over to the Trump administration occurred in the

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<v Speaker 1>first year. There are some legacy cases from the Obama

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<v Speaker 1>administration that were large that were settled. So once those

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<v Speaker 1>were settled, things became very quiet, very quickly. So there

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<v Speaker 1>was an enormous drop and several penalties really through the present,

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<v Speaker 1>although just recently there's a JP. Morgan and the Goldman

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<v Speaker 1>Stack settlement, which were large settlements, although they weren't much

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<v Speaker 1>smaller than they could have been, and the changes were

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<v Speaker 1>accompanied by changes in policy. It was the practice of

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<v Speaker 1>the Department of Justice under the Trump administration to relax

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<v Speaker 1>some of these rules. They highlighted how they did not

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<v Speaker 1>want to pile on penalties, that they wanted to pursue

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<v Speaker 1>declinations and more leneal settlements of corporations more often. And

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<v Speaker 1>it was largely reflected in the data that we see

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<v Speaker 1>the places where there was more continuity in practice, where

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<v Speaker 1>areas in which the Department of Justice really staffed up

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<v Speaker 1>under Obama, those groups of lawyers kept doing what they

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<v Speaker 1>were doing more so than others. The best example of

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<v Speaker 1>that is in the foreign corrupt practices area, where there's

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<v Speaker 1>been someone more continuities between administrations. Is it from the top,

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<v Speaker 1>does the Attorney General say this is what we want

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<v Speaker 1>to do? Or is it because they put more resources

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<v Speaker 1>in certain areas? And how does it work? Well, Many

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<v Speaker 1>really important corporate cases are not brought at Main Justice.

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<v Speaker 1>They are brought by the different use attorney's offices, and

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<v Speaker 1>in particular at the Southern District of New York. So

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<v Speaker 1>who is the U S Attorney for the Southern District

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<v Speaker 1>of New York really matters priorities from the tops also matter,

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<v Speaker 1>and the Department of Justice has set a series of

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<v Speaker 1>guidelines for bringing corporate cases. They keep changing. Each administration

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<v Speaker 1>has been changing those practices, and so it's usually not

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<v Speaker 1>the Attorney General, but usually the Deputy Attorney General, the

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<v Speaker 1>head of the Criminal Section, the head of the Criminal

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<v Speaker 1>fraud Section, you know, fairly high up POJ leadership plays

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<v Speaker 1>a big role in ending policies and corporate cases. And

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<v Speaker 1>they also have tone, even if these aren't always cases

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<v Speaker 1>that the Department of Justice itself is handling, but rather

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<v Speaker 1>one of the U S Attorney's offices. So when they

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<v Speaker 1>say we don't want to see Philine on a fine,

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<v Speaker 1>that sends a strong message to the news attorney's offices.

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<v Speaker 1>In addition, the biggest companies tend to get a hearing

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<v Speaker 1>at the highest levels of the Department of Justice. So

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<v Speaker 1>the Use attorney mayweg and when you have a case

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<v Speaker 1>US against the likes of a Wall Street bank, and

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<v Speaker 1>they may weigh in and tell that the local use

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<v Speaker 1>attorney you've gone too far, this fine is too big.

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<v Speaker 1>You know, regular people do not get that kind of

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<v Speaker 1>a hearing normally in their criminal cases. It takes a

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<v Speaker 1>lot of coordination to resolve major corporate cases. If you

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<v Speaker 1>have the Attorney General and other higher ups that Department

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<v Speaker 1>of Justice saying take it easy on corporation, then companies

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<v Speaker 1>will know that there's no reason to set all the

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<v Speaker 1>case until they get away in from the Attorney General.

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<v Speaker 1>In general, the Department of Justice has, as many have reported,

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<v Speaker 1>become more politicized, and local use attorneys have been undermined

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<v Speaker 1>by the Department of Justice, where the Attorney general wills

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<v Speaker 1>have been sometimes an individual cases. There are always politics

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<v Speaker 1>in these appointments, but do you see more of that

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<v Speaker 1>during the Trump administration. There are serious concerns with firings

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<v Speaker 1>of US attorneys under w. Bush, and we've seen much

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<v Speaker 1>more of that. You know, we've also seen the reverse.

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<v Speaker 1>We've seen a failure to fill a lot of really

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<v Speaker 1>important mid level positions at the Department of Justice, which

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<v Speaker 1>has meant less confidence in the middle and a power

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<v Speaker 1>vacuum and more of a role for the Attorney General.

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<v Speaker 1>It also means that you have less competent and you

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<v Speaker 1>have a hollowing out of the mid level positions. You're

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<v Speaker 1>just not going to have the bureaucratic coordination and bandwidth

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<v Speaker 1>to resolve complicated cases. You know, you have corporations that

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<v Speaker 1>can and do higher entire law firms to represent them,

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<v Speaker 1>and when you have important unfilled positions at the d

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<v Speaker 1>o J, you have corporations that are very well represented.

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<v Speaker 1>And then on the prosecution side, you have no they're

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<v Speaker 1>they're at the higher levels which are needed to finalize

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<v Speaker 1>these complex multiparty deals. How is the prosecution of corporate

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<v Speaker 1>crime likely to change in a Biden administration. There's a

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<v Speaker 1>life cycle to corporate frauds in general. When you have

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<v Speaker 1>criminal acts conducted within an organization, negative information can stay concealed.

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<v Speaker 1>The higher ups in some of these cases in the

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<v Speaker 1>corporation may not know about the crimes. So if they

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<v Speaker 1>have bad compliance, serious misconduct might stay varied within corporation.

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<v Speaker 1>And there hasn't been the same incentive for companies to

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<v Speaker 1>invest in compliance during these Trump years when they know

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<v Speaker 1>that enforcement, whether it's civil or criminal, it was not

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<v Speaker 1>a priority, and so his conduct that was swept under

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<v Speaker 1>the rug are not carefully investigated or not reported to

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<v Speaker 1>the authorities may start to come out of the woodwork.

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<v Speaker 1>And we've seen in the past that during an economic downturn,

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<v Speaker 1>there all of a sudden comes to light wellfeasance as conduct.

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<v Speaker 1>There's already some reporting around fraud problematic applications for relief

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<v Speaker 1>relating to COVID. The economy is suffering because of COVID,

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<v Speaker 1>and when the economy suffers, there can be incentives for

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<v Speaker 1>corporations to disguise how poorly their books are fairing. Nevertheless,

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<v Speaker 1>it may take some time for that conduct to be investigated.

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<v Speaker 1>I suspect that over the next several years some major

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<v Speaker 1>corporate investigation will come to life. There will also be

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<v Speaker 1>more of an incentive for companies to self report to

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<v Speaker 1>a Biden administration because they will be given credit for that.

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<v Speaker 1>And you know, no company wants to be in the

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<v Speaker 1>position of having been caught in the act without having

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<v Speaker 1>been cooperative, without having self reported. So more corporate climate

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<v Speaker 1>come to the d o j's attention once it's clear

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<v Speaker 1>that the d o J takes corporate clip seriously, and

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<v Speaker 1>that was what was happening under the Obama administration, a

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<v Speaker 1>more serious corporate climate approach. What kind of prosecutions might

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<v Speaker 1>be the prior priorities of a Biden Justice Department. There

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<v Speaker 1>are such a wide range of white color crimes, is

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<v Speaker 1>a priority to go after healthcare fraud. It is a

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<v Speaker 1>priority to go after bank related froad securities products and

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<v Speaker 1>to any public company is a priority to target environmental crimes,

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<v Speaker 1>environmental disasters. Pharmaceutical companies have been prosecuted for un savory practices.

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<v Speaker 1>Sure there will be investigations relating to efforts to profit

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<v Speaker 1>from COVID test or vaccines. There was on savory conduct,

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<v Speaker 1>corn bribery, money laundering has been a big priority. They're

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<v Speaker 1>just a host of priority areas that have been somewhat

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<v Speaker 1>neglected in recent years. There's a lot of work for

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<v Speaker 1>a lot of prosecutors to do, and a lot of

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<v Speaker 1>that work also depends on investigations and referrals by administrative

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<v Speaker 1>agencies like the SEC, like the Environmental Protection AGC, like

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<v Speaker 1>Ocean so where you similarly had a following out of

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<v Speaker 1>enforcement at a range of administrative agencies. If enforcement of

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<v Speaker 1>those agencies become small, robust pipelines to prosecutors will also

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<v Speaker 1>be robust. That's Brandon Garrett of do Law School. Harvard

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<v Speaker 1>can continue to consider race and its admissions decisions after

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<v Speaker 1>a federal appeals court rule that the university isn't intentionally

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<v Speaker 1>discriminating against Asian Americans and the policy doesn't violate the Constitution.

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<v Speaker 1>But the case is not over yet, and the battle

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<v Speaker 1>over affirmative action continues in other courts. Joining me is

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<v Speaker 1>Audrey Anderson, who heads the higher education practice at bass

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<v Speaker 1>Baryan Sims. Audrey tell us the main points of the decision.

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<v Speaker 1>While the First Circuit Court of Appeals upheld the District

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<v Speaker 1>Court's finding that Harvard's affirmative action policy complies with the

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<v Speaker 1>legal standards. So this is a victory for Harvard and

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<v Speaker 1>being able to use race in considering applications to Harvard

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<v Speaker 1>College when it admits you. In making that finding, the

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<v Speaker 1>court found that Harvard has a compelling interest in using

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<v Speaker 1>race in terms of certain educational goals. It's trying to

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<v Speaker 1>further in educating students. And it also found that Harvard's

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<v Speaker 1>use of race is narrowly tailored to meeting those goals.

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<v Speaker 1>Those are the two basic standards at the Supreme Court

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<v Speaker 1>has set. The Court said that Harvard doesn't use quotas

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<v Speaker 1>or engage in racial balancing. What does that mean and

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<v Speaker 1>what does Harvard do? What that goes to, June is

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<v Speaker 1>the narrow tailoring. If a college university is going to

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<v Speaker 1>use race, it has to do so in a way

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<v Speaker 1>that is narrowly tailored to its goals. So that means

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<v Speaker 1>that you can't just set a quota for any racial

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<v Speaker 1>group and say we are going to admit x per

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<v Speaker 1>cent of African American students or Hispanic students or white students.

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<v Speaker 1>The Court has said that you can use race as

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<v Speaker 1>one factor among many in determining the students that will

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<v Speaker 1>be admitted and trying to obtain a diverse students body.

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<v Speaker 1>So what Harvard does is its admissions officers have access

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<v Speaker 1>to information about the race of applicants if applicants choose

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<v Speaker 1>to provide that information, and in giving applicants the overall rating,

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<v Speaker 1>which is one factor that the admissions committee considers, the

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<v Speaker 1>readers of applications can consider race. It's also possible in

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<v Speaker 1>the Harvard system. Harvard has a series of what they

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<v Speaker 1>call tips for special considerations that applicants can be given

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<v Speaker 1>for athletic ability or if they have a parent that

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<v Speaker 1>works at Harvard or has donated a lot of money

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<v Speaker 1>to Harvard. One of those tips is race, so you

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<v Speaker 1>can also get a tip for your racial background. So

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<v Speaker 1>parents making large donations is actually recognized as part of

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<v Speaker 1>the rating for the applicant Yeah, and the plane of

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<v Speaker 1>your students for care admissions said that one of the

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<v Speaker 1>reasons that Harvard system was unconstitutional or didn't meet the

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<v Speaker 1>appropriate standards was that Harvard should be forced to give

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<v Speaker 1>up some of those other tips and also give up

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<v Speaker 1>the use of rights. If Harvard gave up the tips

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<v Speaker 1>for children of large donors, maybe it wouldn't have to

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<v Speaker 1>consider race and it could still get a diverse skin body.

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<v Speaker 1>And the court said that Harvard is allowed to pursue

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<v Speaker 1>diversity with race conscious means and also pursue other educational goals,

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<v Speaker 1>and it said that one of those goals can be

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<v Speaker 1>to give special consideration to some children of large donors

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<v Speaker 1>in order to encourage donations to the college. According to

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<v Speaker 1>the court's opinion, the share of admitted Asian American applicants

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<v Speaker 1>co varies almost perfectly with the share of Asian American applicants,

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<v Speaker 1>So the percentages are equal basically of those who are

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<v Speaker 1>admitted in those who applied who are Asian Americans. So

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<v Speaker 1>what was the problem that the plaintiffs saw here? One

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<v Speaker 1>problem that they saw was one of the ratings that

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<v Speaker 1>applicants to Harvard get is called a personal ratings and

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<v Speaker 1>the personal ratings for Asian American students were with certain

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<v Speaker 1>statistical analyzes shown to be lower than for other students.

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<v Speaker 1>So the plaintiffs argued that the only reason you would

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<v Speaker 1>have a personal ratings that was lower for Asian American

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<v Speaker 1>students would be based on stereotypes about Asian Americans that

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<v Speaker 1>were impermissible. They also complained about the fact that on

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<v Speaker 1>what the plaintiffs like to call objective measures and the

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<v Speaker 1>academic ratings that have to do with class ranking and

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<v Speaker 1>performance on standardized tests, the Asian American students tended to

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<v Speaker 1>do better. So the students who had high marks on

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<v Speaker 1>those standards were admitted at lower rates than even white

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<v Speaker 1>students who scored at those same measures did. That that

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<v Speaker 1>leads to people making arguments like, you know, if you

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<v Speaker 1>get a really high score on the standardized test, you

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<v Speaker 1>have to get even a higher score if you're Asian

0:13:08.200 --> 0:13:10.680
<v Speaker 1>in order to get into Harvard. Now that's a very

0:13:10.720 --> 0:13:13.440
<v Speaker 1>hard argument to make at Harvard, because Harvard can fill

0:13:13.520 --> 0:13:18.080
<v Speaker 1>up its entering class many times over. The court pointed

0:13:18.080 --> 0:13:22.079
<v Speaker 1>out that the plaintiffs hadn't presented a single Asian American

0:13:22.160 --> 0:13:26.080
<v Speaker 1>applicant who claimed Harvard discriminated against them. How could that

0:13:26.120 --> 0:13:29.680
<v Speaker 1>be aren't those the plaintiffs in the case. So the

0:13:29.760 --> 0:13:35.319
<v Speaker 1>plaintiff here, June is an association, Students for Fair Admission,

0:13:35.640 --> 0:13:42.280
<v Speaker 1>and they did have members who were who are Asian

0:13:42.280 --> 0:13:47.440
<v Speaker 1>Americans who put forward affidavits saying that they had applied

0:13:47.480 --> 0:13:52.319
<v Speaker 1>to Harvard and not been admitted. They did not identify themselves,

0:13:52.400 --> 0:13:56.160
<v Speaker 1>and they did not come forward and give testimony. So

0:13:56.559 --> 0:14:02.120
<v Speaker 1>courts have allowed associations like Students for Fare Admissions to

0:14:02.480 --> 0:14:06.000
<v Speaker 1>have standing to bring a lawsuit on behalf of their

0:14:06.080 --> 0:14:09.120
<v Speaker 1>members if they can show that they have a member

0:14:09.600 --> 0:14:13.560
<v Speaker 1>who was harmed. So that you think about the N

0:14:13.559 --> 0:14:17.600
<v Speaker 1>double A c P often steps forward and brings lawsuits

0:14:17.679 --> 0:14:21.720
<v Speaker 1>on behalf of their members who are harmed by discrimination.

0:14:22.160 --> 0:14:25.880
<v Speaker 1>So Students for Fare Admissions would say, it's just like

0:14:26.320 --> 0:14:29.480
<v Speaker 1>the N double A c P. Now, Harvard made an

0:14:29.600 --> 0:14:33.160
<v Speaker 1>argument to say that the f f f A should

0:14:33.160 --> 0:14:36.680
<v Speaker 1>not be allowed to bring this lawsuit because the court

0:14:36.760 --> 0:14:40.680
<v Speaker 1>should have looked further to see if s f f

0:14:40.680 --> 0:14:45.480
<v Speaker 1>A was really truly further in the interests of the

0:14:45.520 --> 0:14:50.720
<v Speaker 1>Asian American students it claimed to be representing. And that

0:14:50.880 --> 0:14:53.040
<v Speaker 1>was a win for f f f A because the

0:14:53.680 --> 0:14:59.120
<v Speaker 1>First Circuit examined that argument of Harvards and said, look

0:14:59.280 --> 0:15:01.680
<v Speaker 1>a f f f A does not have to meet

0:15:01.760 --> 0:15:06.280
<v Speaker 1>that special test that Harvard your arguing they need to meet.

0:15:06.960 --> 0:15:10.840
<v Speaker 1>They've met the standards for associational standing and that they

0:15:10.840 --> 0:15:13.400
<v Speaker 1>have shown that they have members who alleged that they

0:15:13.440 --> 0:15:16.840
<v Speaker 1>have been harmed in this way, and they can go forward.

0:15:16.880 --> 0:15:19.960
<v Speaker 1>We are not going to dig below that and make

0:15:20.040 --> 0:15:24.760
<v Speaker 1>them prove that their real purpose is to help Asian Americans.

0:15:25.560 --> 0:15:29.000
<v Speaker 1>So the plaintiffs, the anti affirmative action groups Students for

0:15:29.080 --> 0:15:32.720
<v Speaker 1>Fair Admissions, says the lawsuit is now on track to

0:15:32.800 --> 0:15:35.640
<v Speaker 1>go up to the Supreme Court. Tell us about the group.

0:15:36.320 --> 0:15:39.600
<v Speaker 1>F f f A is headed by Edward Blum and

0:15:39.840 --> 0:15:43.280
<v Speaker 1>appears to be funded by Edward Blum, and he has

0:15:43.320 --> 0:15:48.240
<v Speaker 1>brought other cases where Asian American students were not the plaintiffs,

0:15:48.240 --> 0:15:50.640
<v Speaker 1>and it seems that his real goal here is just

0:15:50.760 --> 0:15:54.520
<v Speaker 1>to end affirmative action. So I don't know that Blum

0:15:54.600 --> 0:15:58.800
<v Speaker 1>ever expected to win this case up until this point.

0:15:59.280 --> 0:16:03.160
<v Speaker 1>I think that one's purpose here is to get the

0:16:03.280 --> 0:16:08.840
<v Speaker 1>United States Supreme Court to overturn its current rulings that

0:16:08.920 --> 0:16:13.200
<v Speaker 1>allow colleges and universities to use race as one factor

0:16:13.600 --> 0:16:17.160
<v Speaker 1>in admitting students. So what he has done is he

0:16:17.200 --> 0:16:21.160
<v Speaker 1>has brought several suits across the country and is hoping

0:16:21.200 --> 0:16:25.200
<v Speaker 1>that one of them will be accepted by the Supreme Court,

0:16:25.480 --> 0:16:29.040
<v Speaker 1>and through that suit, the new membership of the Court

0:16:29.560 --> 0:16:32.640
<v Speaker 1>knew since the last one of these cases was decided,

0:16:33.000 --> 0:16:37.080
<v Speaker 1>will overturn the prior president and hold that colleges and

0:16:37.240 --> 0:16:42.840
<v Speaker 1>universities may not use race as a factor in admitting students.

0:16:43.240 --> 0:16:46.040
<v Speaker 1>The group has also brought a lawsuit against the University

0:16:46.040 --> 0:16:49.760
<v Speaker 1>of North Carolina. Will it help them if that verdict

0:16:49.800 --> 0:16:53.320
<v Speaker 1>conflicts with the Harvard verdict? Exactly, You are exactly right.

0:16:53.320 --> 0:16:56.040
<v Speaker 1>So the case against the University of North Carolina Chapel

0:16:56.120 --> 0:16:59.880
<v Speaker 1>Hill is being tried right now in the Middle District

0:17:00.000 --> 0:17:04.640
<v Speaker 1>of North Carolina, so it will be appealed. Whoever loses

0:17:04.760 --> 0:17:07.119
<v Speaker 1>in the district court will appeal that case to the

0:17:07.200 --> 0:17:11.080
<v Speaker 1>Fourth Circuit Court of Appeals. In the Fourth Circuit will

0:17:11.119 --> 0:17:16.000
<v Speaker 1>issue a ruling. The Supreme Court kind of standard for

0:17:16.080 --> 0:17:18.960
<v Speaker 1>granting review in a case is when there is a

0:17:19.119 --> 0:17:24.840
<v Speaker 1>split in authority between between the courts of appeals. However,

0:17:25.359 --> 0:17:29.320
<v Speaker 1>the Supreme Court has shown an interest in granting review

0:17:29.960 --> 0:17:34.760
<v Speaker 1>of cases where the courts of appeals have considered affirmative

0:17:34.840 --> 0:17:39.040
<v Speaker 1>action in college admissions even when there is no split

0:17:39.160 --> 0:17:44.200
<v Speaker 1>in authority. So the Supreme Court reviewed the Fisher case

0:17:44.640 --> 0:17:48.280
<v Speaker 1>which was against the University of Texas at Austin. They

0:17:48.320 --> 0:17:53.000
<v Speaker 1>reviewed that case even without a split in authority. So

0:17:53.080 --> 0:17:57.440
<v Speaker 1>the Court may choose to review this case from Harvard,

0:17:57.960 --> 0:18:01.120
<v Speaker 1>even though right now there is no what an authority,

0:18:01.440 --> 0:18:05.960
<v Speaker 1>but to kind of bolster his chances. Blum or s

0:18:06.119 --> 0:18:09.880
<v Speaker 1>f f A has the case in North Carolina that's

0:18:09.920 --> 0:18:12.560
<v Speaker 1>in trial right now. They also have two other cases,

0:18:13.280 --> 0:18:16.600
<v Speaker 1>or at least one other case. They filed suit again

0:18:16.760 --> 0:18:20.760
<v Speaker 1>against the University of Texas in Austin, and if that

0:18:20.920 --> 0:18:23.520
<v Speaker 1>case is appeal, that will go to the Fifth Circuit.

0:18:23.840 --> 0:18:26.280
<v Speaker 1>And then there's a case that was originally filed by

0:18:26.320 --> 0:18:31.280
<v Speaker 1>the United States against Yale University, and s f f

0:18:31.359 --> 0:18:34.879
<v Speaker 1>A has recently filed a motion to be allowed to

0:18:35.119 --> 0:18:39.200
<v Speaker 1>enter that case as a plaintiff against Yale. So Blum

0:18:39.280 --> 0:18:41.640
<v Speaker 1>has four k or s f f A has four

0:18:41.680 --> 0:18:46.159
<v Speaker 1>cases going on right now if it does go to

0:18:46.200 --> 0:18:49.679
<v Speaker 1>the Supreme Court, just as Kennedy I believe was the

0:18:49.800 --> 0:18:53.840
<v Speaker 1>key to allowing affirmative action to continue. So how might

0:18:53.880 --> 0:18:57.840
<v Speaker 1>this new more conservative Supreme Court look at a case

0:18:57.880 --> 0:19:03.160
<v Speaker 1>on affirmative action, So June, there are actually four members

0:19:03.200 --> 0:19:07.240
<v Speaker 1>of the current Court who have not had occasion to

0:19:07.400 --> 0:19:10.879
<v Speaker 1>rule at Supreme Court justices on the question of race

0:19:10.960 --> 0:19:15.440
<v Speaker 1>conscious college admissions programs. One of them is Justice Kagan.

0:19:16.040 --> 0:19:19.399
<v Speaker 1>She was on the Court when the Court last considered

0:19:19.960 --> 0:19:24.080
<v Speaker 1>um affirmative action in the Fisher case, but she refused herself.

0:19:24.600 --> 0:19:28.680
<v Speaker 1>We can expect that Justice Kagan will agree with Justices

0:19:28.800 --> 0:19:32.600
<v Speaker 1>Bryer and so do Mayor and find that race can

0:19:32.640 --> 0:19:35.720
<v Speaker 1>be used if the college proves they have a compelling

0:19:35.800 --> 0:19:38.879
<v Speaker 1>interest and if it's narrowly tailor, so that gets you

0:19:38.960 --> 0:19:42.840
<v Speaker 1>three votes. But then you have Justices Gorsuch, Kavanaugh, and

0:19:42.960 --> 0:19:45.600
<v Speaker 1>Barritt that you don't know what they'll do. You have

0:19:45.760 --> 0:19:48.359
<v Speaker 1>to expect that they're going to rule more in line

0:19:48.400 --> 0:19:52.000
<v Speaker 1>with Chief Justice Roberts and the Justices Thomas and Alito.

0:19:52.520 --> 0:19:56.360
<v Speaker 1>The three of them, Roberts, Thomas, and Alito are all

0:19:56.440 --> 0:19:59.320
<v Speaker 1>on the record as saying that they don't believe the

0:19:59.359 --> 0:20:04.800
<v Speaker 1>Constitution s allows colleges and universities to use race in

0:20:04.920 --> 0:20:09.679
<v Speaker 1>colleges missions. They do not believe that race can be

0:20:10.680 --> 0:20:13.399
<v Speaker 1>used as a compelling interest. The colleges do not have

0:20:13.520 --> 0:20:18.119
<v Speaker 1>a compelling interest in pursuing the educational benefits of a

0:20:18.160 --> 0:20:22.320
<v Speaker 1>diverse student body. So, based on the other things we

0:20:22.359 --> 0:20:26.640
<v Speaker 1>know about Corsach, Kavanaugh and Barrett, one would expect them

0:20:27.000 --> 0:20:32.400
<v Speaker 1>to join the views of Roberts, Thomas, and Eledo. However,

0:20:33.040 --> 0:20:35.200
<v Speaker 1>let's say they agree with with with them on this,

0:20:35.400 --> 0:20:38.600
<v Speaker 1>then you have to answer the question of wealth. The

0:20:38.680 --> 0:20:44.800
<v Speaker 1>court has this precedence in Grutter the case from the

0:20:44.880 --> 0:20:48.159
<v Speaker 1>University of Michigan from the early two thousand's and the

0:20:48.200 --> 0:20:52.560
<v Speaker 1>Fisher case. So then if for sich, Kavanaugh and Barrett say, well,

0:20:52.600 --> 0:20:55.399
<v Speaker 1>if this came to me in the first instance, I

0:20:55.400 --> 0:20:58.440
<v Speaker 1>would say there is no compelling interests in using race

0:20:58.480 --> 0:21:01.879
<v Speaker 1>for the educational benefits of aversity. However, now I have

0:21:02.000 --> 0:21:06.040
<v Speaker 1>to consider whether we are going to overrule the courts

0:21:06.080 --> 0:21:11.720
<v Speaker 1>prior President the Trump administration joined the plaintiffs in the

0:21:11.800 --> 0:21:16.080
<v Speaker 1>Harvard suit, and the Trump administration sued Yale. One of

0:21:16.119 --> 0:21:20.040
<v Speaker 1>the highest profile actions by the Civil Rights Division during

0:21:20.040 --> 0:21:24.280
<v Speaker 1>the Trump administration was that lawsuit against Yale. Will it

0:21:24.359 --> 0:21:29.040
<v Speaker 1>change to the Biden administration? Change things? May? Might they

0:21:29.119 --> 0:21:32.680
<v Speaker 1>drop that lawsuit against Yale? Is that why Blum wants

0:21:32.720 --> 0:21:36.480
<v Speaker 1>to join it. Maybe you got that exactly right. I'm

0:21:36.480 --> 0:21:41.160
<v Speaker 1>the Biden administration could very well drop the lawsuit against

0:21:41.320 --> 0:21:44.080
<v Speaker 1>Yale or try to find a way to settle it,

0:21:44.160 --> 0:21:48.240
<v Speaker 1>except that Blum has now moved to become a poaintiff,

0:21:48.880 --> 0:21:51.960
<v Speaker 1>And if the court allows f f F A to

0:21:52.080 --> 0:21:56.160
<v Speaker 1>become a poaintiff in that Yale suit, it doesn't really

0:21:56.240 --> 0:22:00.240
<v Speaker 1>matter what what the government does. I mean it earth,

0:22:00.359 --> 0:22:03.800
<v Speaker 1>but not nearly as much I will. I expect that

0:22:03.880 --> 0:22:09.439
<v Speaker 1>the Biden administration UH Department of Justice will switch sides

0:22:09.880 --> 0:22:15.199
<v Speaker 1>in these cases and support the use of affirmative action

0:22:15.359 --> 0:22:18.600
<v Speaker 1>and college admissions. I think that they may have already

0:22:18.640 --> 0:22:21.240
<v Speaker 1>said that. There was a guidance document that was put

0:22:21.240 --> 0:22:25.720
<v Speaker 1>out during the Obama administration about ways that colleges and

0:22:25.840 --> 0:22:32.719
<v Speaker 1>universities could, consistent with the constitution, use race in college

0:22:32.720 --> 0:22:37.560
<v Speaker 1>admissions and other actions. The Trump administration revoked that guidance,

0:22:37.600 --> 0:22:40.240
<v Speaker 1>and I'm pretty sure that the Biden administration has said

0:22:40.240 --> 0:22:42.159
<v Speaker 1>that one of the actions is going to take is

0:22:42.200 --> 0:22:45.000
<v Speaker 1>to put that guidence back in place. So that's a

0:22:45.080 --> 0:22:49.760
<v Speaker 1>really good marker of what they will do UM once

0:22:49.800 --> 0:22:53.280
<v Speaker 1>there in place. But if f f F A UM

0:22:53.359 --> 0:22:55.040
<v Speaker 1>is allowed to be a plaint if in the Yale case,

0:22:55.080 --> 0:22:57.920
<v Speaker 1>it doesn't really matter. You will have to fight against

0:22:57.960 --> 0:23:00.880
<v Speaker 1>the private point of than for being in the Bloomberg

0:23:00.960 --> 0:23:03.840
<v Speaker 1>Last Show, Audrey, that's Audrey Anderson, who has the higher

0:23:03.920 --> 0:23:07.440
<v Speaker 1>education practice at Bassbarian SIMS. And that's it for the

0:23:07.480 --> 0:23:10.800
<v Speaker 1>sedition of the Bloomberg Law Show. I'm June Grasso. Thanks

0:23:10.840 --> 0:23:13.399
<v Speaker 1>so much for listening. Remember you can always get the

0:23:13.480 --> 0:23:16.160
<v Speaker 1>latest legal news on our Bloomberg Law Podcast. You can

0:23:16.200 --> 0:23:20.440
<v Speaker 1>find them on iTunes, SoundCloud, or at www dot bloomberg

0:23:20.480 --> 0:23:24.680
<v Speaker 1>dot com slash podcast Slash Law. Thanks so much for listening,

0:23:24.960 --> 0:23:27.439
<v Speaker 1>and please tune into the Bloomberg Laws Show every evening

0:23:27.440 --> 0:23:30.000
<v Speaker 1>at ten pm Eastern right here on Bloomberg Radio.