Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: Republican representative Moe Brooks says he was acting in his
Speaker 1: official capacity as a lawmaker when he gave an incendiary
Speaker 1: speech at a pro Trump rally before the attack on
Speaker 1: the Capitol on January six. Today is the day American
Speaker 1: patriots start taking down names and tickets. Brooks wanted the
Speaker 1: Justice Department to defend him against a lawsuit accusing him
Speaker 1: of helping to incite the attack, which would have effectively
Speaker 1: given him immunity, but the Justice Department refused, joining me.
Speaker 1: As constitutional law professor Stephen Vladdock of the University of
Speaker 1: Texas Law School, this involves the west Fall Act. Steve
Speaker 1: tell us about it. So the Westpall Act this part
Speaker 1: of the Federal Tort Claims Act, which is statute where
Speaker 1: the federal government for the first time broadly opened itself
Speaker 1: up to lie at ability when federal officers acted within
Speaker 1: the scope of their employment commit towards negligence in a
Speaker 1: place that and the idea is that the federal government
Speaker 1: would stand in the shoes of its officers, at least
Speaker 1: in those cases where the officers were acting within the
Speaker 1: both of their employment. The west Fall Act, which was
Speaker 1: an accid in, basically expands that to include cases where
Speaker 1: plaintiffs have still tried to sue the officers, so as
Speaker 1: opposed to where the plantiffs suits the United States itself. Now,
Speaker 1: the Westpall Act is a mechanism for officers to say,
Speaker 1: wait a second, you can't sue me. This is the
Speaker 1: kind of suits that has to proceed against the United
Speaker 1: States directly under the sec A. Now, why did mole
Speaker 1: Brooks argue that he should be covered under the west
Speaker 1: Fall Act. So there's sort of two interesting hooks to
Speaker 1: the mob Brooks argument. The first is his claim that
Speaker 1: as a member of Congress, he is an employee of
Speaker 1: the United States. We tend not to think of elected
Speaker 1: officials employees. But second, and more importantly, his claim was
Speaker 1: that he was acting in his official capacity as a
Speaker 1: member of the US House when he made the remarks
Speaker 1: for which he's being shoes, and that therefore they fell
Speaker 1: within the scope of his official employment, such that if
Speaker 1: there's a claim here, it should have to be against
Speaker 1: the United States. And the reason why that's a big deal, students,
Speaker 1: because the west Ball Acts does not allow claims for
Speaker 1: intentional sports against non law enforcement officers. So if in
Speaker 1: fact the west Ball Act substitution were permissive here, not
Speaker 1: only would the United States the substitutents defended, but the
Speaker 1: lawsuit would have to be dismissed. The Justice Department said
Speaker 1: it won't defend Brooks. Explain why they came to that
Speaker 1: decision in any Westball Act case sort of. The first
Speaker 1: question is d o J going to certify that the
Speaker 1: officer in question was in fact acting within socials employment.
Speaker 1: D J did not certify that. Instead, d o J
Speaker 1: said that the exact distinction that the House rules draw
Speaker 1: between official business and campaign activity is exactly why Brooks
Speaker 1: was not acting within the scope of employment here, that
Speaker 1: he himself has said his appearance at the rally, his
Speaker 1: comments on Generous six, he has said those were all
Speaker 1: part of his sort of campaign side, which was actually
Speaker 1: largely designed as an argument to avoid internal consequences within
Speaker 1: the House. The problem is that by making that argument,
Speaker 1: he has also, as d o J explained, fatally undermined
Speaker 1: the claim that it was therefore within the scope of
Speaker 1: his employment. But then DJ said, and in any event,
Speaker 1: in so far as the allegations in the lawsuit are true,
Speaker 1: and so far as wasn't fact inciting violence against Congress,
Speaker 1: it is impossible to imagine how that could be within
Speaker 1: the scope of his employment as a member of Congress
Speaker 1: to incite violence against him and his colleague. Now the
Speaker 1: Justice Department said inciting attack on Congress quote is not
Speaker 1: within the scope of employment of a representative or any
Speaker 1: federal employee. Is this a signal that if former President
Speaker 1: Trump asks to be covered under the Westfall Act, that
Speaker 1: the Justice Department will say no to him as well?
Speaker 1: So maybe? I mean, I think a lot of folks
Speaker 1: have jumped to the you know, what does this mean
Speaker 1: for President Trump? And we've already seen the o J
Speaker 1: controversially takes the position that Trump was acting within the
Speaker 1: schools employment when he defamed DJ and Carol. I think
Speaker 1: the o j's position in the bookcase doesn't necessarily committed
Speaker 1: to take from the same position in Trump case. I mean,
Speaker 1: there's an argument June that they made in the Carol
Speaker 1: case that the president is always on duty. These things
Speaker 1: the President says are actually always within the scopeles employment
Speaker 1: in a way that's not true for members of Congress.
Speaker 1: But I do think there's at least the possibility that
Speaker 1: this line of reasoning that inciting an attack against Congress
Speaker 1: is not and cannot be part of one's official duties
Speaker 1: could show up again if and when this issue rears
Speaker 1: its head and some of the januous tips related lawsuits
Speaker 1: against Trump himself. I mean, I think DJ now has
Speaker 1: left itself the ability to argue I think in both
Speaker 1: directions on that one. Do you think that the Justice
Speaker 1: Department intervening over the years in these cases has made
Speaker 1: it harder for courts to hold government employees account doable
Speaker 1: for wrongdoing? Absolutely? I mean, I think d J has
Speaker 1: historically taken a very broad and capacious understanding of the
Speaker 1: term scope of employment within the Westball app. The case
Speaker 1: it always stands out to me about this June is
Speaker 1: a Guantanamo torture case where d o J took the
Speaker 1: position that torture of a detainee was within the scope
Speaker 1: of d o D officials employment torture, which can never
Speaker 1: be legal. It's hard for me to see how that
Speaker 1: could therefore otherwise be within the scope of employment and
Speaker 1: their institutional reasons. June why politics aside, d j's interests
Speaker 1: invariably tilted in favor of defending officers of a certain
Speaker 1: broad understanding what scope employment means. That's part of why
Speaker 1: I wasn't surprised that d J did certify President Trump
Speaker 1: in the Gene Carrol case. But there is a stopping point,
Speaker 1: and I think that what Congressman Brooks is accused of
Speaker 1: doing on January six, if that were within the scope
Speaker 1: of these employment then it's hard to imagine what wouldn't be.
Speaker 1: Folks may not like where d J has drawn the
Speaker 1: line between these two cases. I actually think, at least
Speaker 1: based on DJ's historical approach to this context, that distinction
Speaker 1: makes a lot of sense. Has the Supreme Court or
Speaker 1: have circuit courts ruled on this, sure, I mean there
Speaker 1: are tons of decisions about what scope of employment is
Speaker 1: and intentionally pretty broad. I mean there's a d C
Speaker 1: Scircuit case that then Circuit Judge kavanat Road where the
Speaker 1: Court held it at least under d C law. So
Speaker 1: for officers who are operating within the District of Columbia,
Speaker 1: scope of employment is almost can amount to gist, are
Speaker 1: you on the job to heck with whether you had
Speaker 1: any legal authority for doing what you were doing, or
Speaker 1: you wearing your uniform at the time you did it.
Speaker 1: So there's a ton of Paseball about the west Ball
Speaker 1: app because this comes up a lot. Obviously there's less
Speaker 1: pace law involving members of Congress and the president, but
Speaker 1: at least remembers of Congress, there's more than none. There's
Speaker 1: an important DC circuit case from the early two thousand's
Speaker 1: about a member of Congress acting within the scope of
Speaker 1: employment when he defamed um. There was a trick and
Speaker 1: he defamed one of the alleged participants, and the claim
Speaker 1: was how could that have anything to do with his
Speaker 1: job at The member of Congress in the court said, well,
Speaker 1: he did it well, speaking to a reporter on Capitol
Speaker 1: Hill as part of a presribution. That's how brass cases are.
Speaker 1: That's why I think the OJ's behavior in the Trump
Speaker 1: cases so far has not been that surprising. What's your
Speaker 1: take on Trump's defense in the Capital Riot suit Absolute
Speaker 1: presidential immunity and nick and verss Gerald The Supreme Court said, Yes,
Speaker 1: presidents are entitled to apps for the immunity for any
Speaker 1: conduct while they are presidents that falls within the outer
Speaker 1: perimeter of their officialty. And so I think it comes
Speaker 1: down to whether President Trump's January six speech and his
Speaker 1: other conduct on January six could plausibly said to be
Speaker 1: within the outer perimeter of his official duties. And I
Speaker 1: think there are large swaps of President Trump content on
Speaker 1: January sixs that clearly are and will be deempity, but
Speaker 1: I'm not sure all that will be. For example, the
Speaker 1: tweets he sent in the afternoon, it did not in
Speaker 1: fact actually tell people, at least initially to stand out
Speaker 1: and go home. I mean, I think it's going to
Speaker 1: be a close call. I think it's going to be
Speaker 1: sort of some of it's protested, but not all of it.
Speaker 1: But I think that's where the fight is going to be,
Speaker 1: not the West ballot. Can Trump in the future ask
Speaker 1: the Justice Department to certify him under the West Fall Act, Yeah,
Speaker 1: I mean he can ask j to certify um. And
Speaker 1: there's a procedure in the West Blast where's DOJ declines
Speaker 1: to certify, he can ask the court to do it.
Speaker 1: And so you know, that's also something that Congressman Brooks
Speaker 1: might now do the West Box. Interestingly, it does not
Speaker 1: impose a time limit on when such a request has
Speaker 1: to be made, so it's still possible that the West
Speaker 1: Ballast issue is going to have to be litigated in
Speaker 1: the Trump case as well. I just think that's a
Speaker 1: much stronger argument that Trump will have is the Nixton
Speaker 1: versus the child argument, which is really gonna require courts
Speaker 1: to sort of break apart different things that he said
Speaker 1: and did leading up to and on January six and
Speaker 1: deciding to represent Trump in the defamation case. I mean,
Speaker 1: the Justice Department really didn't have to do that because
Speaker 1: the judge had already rejected the west Fall Act for
Speaker 1: Trump there and hadn't it's not appeal Well, so it
Speaker 1: hasn't sinful I mean, so it hasn't sinfully litigated. Sod
Speaker 1: J made the west Fall a certification and then the
Speaker 1: court rejected it, and so that's what's being appealed, right.
Speaker 1: The District Court refused to accept the OJ certification um
Speaker 1: in the in the Carol case. That's what the second
Speaker 1: is not considering whether the distrec Court was wrong to
Speaker 1: reject case, whether it should have been accepted. Let's say
Speaker 1: Trump asks for certification under the west Fall Act in
Speaker 1: the Capital Riot cases. What kind of argument could the
Speaker 1: Justice Department make to distinguish the Capital Riot case from
Speaker 1: the defamation case where they agreed to defend him since
Speaker 1: I think the biggest difference is the context June, where
Speaker 1: in the Carol case the defamation claim arises out of
Speaker 1: common Trump made is as part of the press gaggle,
Speaker 1: where he was answering questions in his capacity as president. Now,
Speaker 1: I think there are plenty folks who still think that
Speaker 1: should not be enough, that just because he's answering questions
Speaker 1: doesn't free him from liability for things that have nothing
Speaker 1: to do with the discharge of his duties as president.
Speaker 1: But that's the argument in that case, And I think
Speaker 1: the argument here would be, you know, the president inciting
Speaker 1: violent protests to disrupt the certification of his electoral defeat
Speaker 1: is not remotely within the scope of his official duties
Speaker 1: to nearly the same extent as answering questions in the
Speaker 1: press gradually, you know, I think there are folks who
Speaker 1: are going to think that both cases come out the
Speaker 1: same way, whether for Trump or against him. I just
Speaker 1: think that there's plausible defense to seeing them as different
Speaker 1: in that respect. The House also refused to defend Brooks.
Speaker 1: Is that their own kind of analysis that goes on
Speaker 1: It's not a west fall Aft analysis, No, that's I mean,
Speaker 1: that's sort of the from the Houses. So the Westball
Speaker 1: access is purely about d o J's position, And indeed
Speaker 1: the Act is quite specific about the role of the
Speaker 1: Attorney General and the role of the Justice Department. The
Speaker 1: House is the House. That's more from the perspective from
Speaker 1: the from the House rule purposes. Is this the case
Speaker 1: where book should be represented by House lawyers as opposed
Speaker 1: to private lawyers. There's actually nothing formal legally that turns
Speaker 1: on whether he's represented by House lawyers or not. Um,
Speaker 1: that's more just the question of who pays a legal bill.
Speaker 1: The Select Committee wants to obtain all the communications at
Speaker 1: the White House and conversations with Trump that occurred surrounding
Speaker 1: January six, and the Justice Department formally declined to assert
Speaker 1: executive privilege over testimony related to January six. What does
Speaker 1: that do? Because I think that the head of the committee,
Speaker 1: Congressman Thompson, said that it will make things easier for them,
Speaker 1: and I'm just wondering if it really will make things easier, well,
Speaker 1: I mean sons easier in the sense that you know,
Speaker 1: presumably there will be no one who has the standings
Speaker 1: to assert a privilege claim. The problem that I foresee
Speaker 1: is the you know, the House still has to have
Speaker 1: some mechanism for compelling compliance with the is issued by
Speaker 1: the Select Committee, and it seems like the only way
Speaker 1: to do that is to go to court um. And
Speaker 1: so you know, once you have the Select Committee trying
Speaker 1: to enforce subpoenas against calcitured witnesses, yes, there will be
Speaker 1: no good privilege defense because the OJ is not a
Speaker 1: certain privilege, but it will still take some time, you know,
Speaker 1: and it will still require courts to actually hold that
Speaker 1: there's no privilege defense, a matter that of course could
Speaker 1: itself be appealed. So I guess I'm I'm a little
Speaker 1: more circumspect about how quickly that's going to go and
Speaker 1: how effectively the Committee will be able to enforce subpoenas,
Speaker 1: at least against private actors. Of course, I think subpoenas
Speaker 1: to the executive branch, it sounds like, are going to
Speaker 1: be generally complied with. And that may be what Congressman
Speaker 1: Thompson me is when talking about how much easier it's
Speaker 1: going to go. So you think that if the subpoena
Speaker 1: let's say former Attorney General Bill Barr, that he'll comply. No, Actually,
Speaker 1: I'm not sure that if the former Jurney will comply.
Speaker 1: I think there will be at least some effort by
Speaker 1: private by people who are now private parties. You can
Speaker 1: test these subpoenas and courts even if they are unsuccessful.
Speaker 1: I think the reason why, from the perspective of Commerson Thompson,
Speaker 1: that may not be that a good deal. It's because
Speaker 1: if the Biden administration is going to comply, then it
Speaker 1: may not need that much assistance from those former officials.
Speaker 1: Then it might have everything that needs on government servers
Speaker 1: right in the possession of the current executive branch. Right
Speaker 1: because what did he take about two years to get
Speaker 1: former White House Counsel Don McGan to testify after he
Speaker 1: was no longer the White House counsel? I mean, And
Speaker 1: so I think with private witnesses, it's not hard to
Speaker 1: imagine how that history repeats itself. The big difference is
Speaker 1: that those private witnesses won't be nearly essential to the
Speaker 1: inquiry in a contest in which you have the Justice
Speaker 1: Department and a White House that are willing to cooperate.
Speaker 1: Thanks Steve. That's Professor Stephen Vladdock of the University of
Speaker 1: Texas Law School. Affirmative action was first introduced into this
Speaker 1: country sixty years ago, but it remains one of the
Speaker 1: most contentious issues, constantly little gated and discussed, as in
Speaker 1: the Netflix series Dear White People. Hey, look, you guys
Speaker 1: still got affirmative action. I'm sorry, what exactly are you
Speaker 1: doing here? Alright? Obama right, leader of the free world.
Speaker 1: He gets into Harvard based on you too late affirmative action.
Speaker 1: You know he's not president right now, the guy who
Speaker 1: didn't get in. The goal of the group, Students for
Speaker 1: Fair Admissions is to eliminate race in college admissions decisions.
Speaker 1: S f f A is behind the cases challenging the
Speaker 1: consideration of race and admissions at Harvard, Yale, the University
Speaker 1: of North Carolina, and the University of Texas at Austin.
Speaker 1: But a Texas federal judge has just tossed the case
Speaker 1: against U T. Austin, ruling that the issues had already
Speaker 1: been decided in the famous case of Fisher versus the
Speaker 1: University of Texas at Austin, which the group was behind
Speaker 1: and which reached the Supreme Court twice, which reached the
Speaker 1: Supreme Court twice. Joining me is Andrey Anderson, head of
Speaker 1: the Higher Education practice at Bassbarian SIMS tell us about
Speaker 1: this case. In this case June, it was a second
Speaker 1: case that had been brought against the University of Texas
Speaker 1: at Austin challenging their race conscious admissions policies for undergraduate students.
Speaker 1: The University of Texas had been sued earlier in the
Speaker 1: two thousand and eight two thousand nine time frame about
Speaker 1: their race conscious student admissions policies in that case went
Speaker 1: all the way to the Supreme Court, not once, but twice.
Speaker 1: This suit was a follow on suit that was filed
Speaker 1: within the last couple of years challenging those student admissions
Speaker 1: practices again. Had the admissions practices changed at the University
Speaker 1: of Texas since the Fisher case, Well, that was one
Speaker 1: of the things that the parties in this case disputed
Speaker 1: a little bit. But no, the University Texas had not
Speaker 1: come out and said, oh, we're putting out a new
Speaker 1: students admissions program. We're doing something different, and that caused
Speaker 1: the point of to say, oh, well, we're going to
Speaker 1: challenge this new program. The real reason that the plane
Speaker 1: of that the Students for Fair Admissions group challenged the
Speaker 1: University of Texas admissions policies again is likely that there
Speaker 1: was a change in the people who are now on
Speaker 1: the Supreme Court now as opposed to when they lost
Speaker 1: their earlier suit against the University of Texas. That is
Speaker 1: almost certainly what caused f f f A to bring
Speaker 1: this second suit. Tell us about the Fisher case that
Speaker 1: went to the Supreme Court twice. What happened. Yeah, So,
Speaker 1: in in the Fisher case, it was brought by an
Speaker 1: individual plane I Abigail Fisher, a white woman, who was
Speaker 1: denied admission to the University of Texas, and she alleged
Speaker 1: at the University of Texas admissions program, which does consider
Speaker 1: race in a very limited way as part of a
Speaker 1: holistic review of student applications, that that consideration of race
Speaker 1: violated the Equal Protection Clause. And the Supreme Court looked
Speaker 1: at that case two times. The first time they said
Speaker 1: that the lower courts had used the wrong standards in
Speaker 1: saying that the admissions program was constitutional, So they said,
Speaker 1: use the wrong standards, look at it again. The lower
Speaker 1: courts looked at it again and said, hey, we still
Speaker 1: think this is constitutional. The Supreme Court looked at it
Speaker 1: a second time, and in two thousand sixteen, by a
Speaker 1: five four vote, held that the University of Texas is
Speaker 1: race conscious admissions program was constitutional, and I was surprised
Speaker 1: to learn that Abigail Fisher is also an officer and
Speaker 1: board member of Students for Fair Admissions. Yes, what was
Speaker 1: going on behind the scenes with all of this is
Speaker 1: uh wealthy businessman Edward Blum, who really was the moving
Speaker 1: force behind the Fisher case. He knew Abigail Fisher's father,
Speaker 1: and as he was thinking about ways that he could
Speaker 1: challenge race conscious admissions programs and universities in America, he
Speaker 1: found out that Abigail had been denied admissions to the
Speaker 1: University of Texas, and he decided she would be a
Speaker 1: wonderful plaintiff and Texas would be a wonderful school to sue.
Speaker 1: So he bankrolled the Fisher litigation. He chose the lawyers,
Speaker 1: he helped with the strategy, and then when they lost
Speaker 1: in Fisher, they started this organization called Students for Fair Admissions.
Speaker 1: The original board members were Edward Blum, Abigail Fisher, and
Speaker 1: her father, Robert Fisher. That was the original board of
Speaker 1: the organization, and they then started looking for schools across
Speaker 1: the country that could be sued to further their goal
Speaker 1: of eventual Supreme Court holding that race may not be
Speaker 1: considered by universities in America for purposes of their undergraduate
Speaker 1: or any kind of admissions. So let's talk about the
Speaker 1: court's findings first on the standing issue. Yeah, So, a
Speaker 1: standing is a concept that we have in the United
Speaker 1: States legal system that you cannot bring a lawsuit unless
Speaker 1: you have actually been injured by something that the defendant,
Speaker 1: the person you're doing, has done. And for the suit
Speaker 1: we're talking about here, it was brought by the organization
Speaker 1: Students for Fair Admissions UM that Blum has created. So
Speaker 1: when you're looking at membership organization, which a s f
Speaker 1: f A says it is, they now have members, people
Speaker 1: who have joined the organization who say that, yes, we
Speaker 1: are all in favor of getting rid of the consideration
Speaker 1: of race in college admissions, and they've ay a five
Speaker 1: dollar membership B. When you have an organization like that,
Speaker 1: like then double a CP, the organization can sue if
Speaker 1: they can show that any one of their members has
Speaker 1: been injured by the actions of the defendants. So that's
Speaker 1: how s f f A was bringing the suit. We
Speaker 1: have members. They said two of their members were white
Speaker 1: men who had applied to Texas and been denied admission.
Speaker 1: The university said, hey, wait a minute. First of all,
Speaker 1: you're not really a membership organization. You say you have
Speaker 1: these members, but they're not real members. And they made
Speaker 1: a very technical argument based on um the by laws
Speaker 1: of the organization and the state law that the organization
Speaker 1: is organized under in Virginia, and the court denied that,
Speaker 1: as other courts have denied that argument. They said, no,
Speaker 1: we are going to look at this in a practical way.
Speaker 1: They put forward proof that they really are a membership organization,
Speaker 1: so we are going to allow them to bring this suit.
Speaker 1: I think from a practical perspective, many of these universities say, hey,
Speaker 1: this is really just one guy, Edward Blum, who's on
Speaker 1: this quest to get rid of race conscious admissions, and
Speaker 1: he's kind of twisting this concept of a membership organization
Speaker 1: in order to work his will. And so that standing
Speaker 1: concept has been brought up in I think every one
Speaker 1: of these suits that s f f A has brought,
Speaker 1: and so far it's been denied. Every court has said no,
Speaker 1: we're going to treat f f f A as a
Speaker 1: real membership organization. So that was no surprise that they
Speaker 1: were allowed to go forward and say you have standing
Speaker 1: to bring this lawsuits. Why did the court dismiss the
Speaker 1: case on the grounds of race judicata. Yeah, the other
Speaker 1: concept has a fancy or a Latin word race judicata,
Speaker 1: but it's a very practical concept that says, look, the
Speaker 1: courts are not going to decide the same lawsuit two times.
Speaker 1: We have too much to do. We're not going to
Speaker 1: decide something a second time. So what you have to
Speaker 1: prove to show race judicata is that the parties in
Speaker 1: front of you this second time are the same parties
Speaker 1: or are what we call the law in privity with
Speaker 1: one another. Maybe they aren't the same parties that were
Speaker 1: in the first lawsuit, but they nonetheless had some kind
Speaker 1: of control over the first lawsuit enough to say that, look,
Speaker 1: you had an ability to have your rights heard in
Speaker 1: that first lawsuit, And were the claims in the first
Speaker 1: lawsuit actually the same as the claims in the second lawsuit.
Speaker 1: If we can find that it's the same parties or
Speaker 1: the parties were in privity in both suits, and that
Speaker 1: the claims are the same in both suits, we're not
Speaker 1: going to hear the second suit. We've already done this.
Speaker 1: So that's what was really an issue in the university's
Speaker 1: motion for summary judgment. That's how you bring one of
Speaker 1: these motions before the court. And the court here found
Speaker 1: that this second suit should be dismissed based on the
Speaker 1: principles of race judicata. So the court found that s
Speaker 1: f f A was in privity with Abigail Fisher in
Speaker 1: their first lawsuit. And they found that based on some
Speaker 1: of the facts I was spinning out before that. Edward
Speaker 1: Blom is the president of s f f A. He's
Speaker 1: one of the board members. Abigail Fisher is one of
Speaker 1: the board members. Her father is a third board member.
Speaker 1: There are two other board members. But the court said
Speaker 1: that the three board members, Abigail, her father, and Edward
Speaker 1: Blum really had effective control over s f f A
Speaker 1: and what it does, especially when it comes to litigation efforts.
Speaker 1: And they said, those are the three people who also
Speaker 1: controlled what happened in the Abigail Fisher case. So the
Speaker 1: parties were in privity with one another. And of course
Speaker 1: the defendants are the same. The University of Texas at
Speaker 1: Austin was the defendant in the first case is the
Speaker 1: defendant in the second case. So the court found, all right,
Speaker 1: we've got the same parties or their in privity with
Speaker 1: one another. Now the second question is are we looking
Speaker 1: at the same claims. Well, the point of made that
Speaker 1: kind of easy for the court because the complaint in
Speaker 1: the second case looked very similar to the complaint in
Speaker 1: the first case in terms of what they were complaining about.
Speaker 1: S F F f A said, well, we're not complaining
Speaker 1: about the same thing because some of the facts have
Speaker 1: changed in the intervening ten years. They said that the
Speaker 1: University of Texas didn't use the same kind of language
Speaker 1: to describe its use of race. So whereas in two
Speaker 1: thousand eight when Abigail Fisher was suing, they just said
Speaker 1: that race was a consideration, now in two thousand eighteen,
Speaker 1: two thousand nineteen they said it was a significant consideration.
Speaker 1: The court said, that's just semantics. You haven't pointed to
Speaker 1: anything they're really doing differently. And then the plants also
Speaker 1: pointed out, well, the state of research has really changed.
Speaker 1: One of the things you have to prove if your university,
Speaker 1: in order to show that your program meets constitutional standards
Speaker 1: is you have to prove that you do not have
Speaker 1: race neutral options available to you that will get you
Speaker 1: the same level of diversity and S f f A said, look,
Speaker 1: there's all sorts of research that's been done in the
Speaker 1: ten years between the two suits that show that there
Speaker 1: are additional race neutral options that universities can use in
Speaker 1: order to get greater diversity. And the court said, well,
Speaker 1: that may or may not be true. But in your
Speaker 1: two complaints race neutral options, you are saying that the
Speaker 1: University of Texas should use is exactly the same race
Speaker 1: neutral options in eighteen that you said that they should
Speaker 1: have used in two thousand eight. So we don't see
Speaker 1: that that's different either. So the court said, same claims.
Speaker 1: Parties are imprivity race judicata. We're not going to hear
Speaker 1: the second lawsuit. I said that. They says it's going
Speaker 1: to appeal, But why appeal when they have three other
Speaker 1: cases and it would be going back to the Fifth
Speaker 1: Circuit which had ruled against them in the last case. Yeah,
Speaker 1: I think that's kind of a head scratcher to meet
Speaker 1: to June. And part of that is people often say
Speaker 1: that and then they don't end up appealing. You know.
Speaker 1: One of the things that s f f A is
Speaker 1: trying to do is to get appellate decisions from different
Speaker 1: courts of appeals around the country that are in conflict
Speaker 1: with one another, because that's the best way to get
Speaker 1: the Supreme Court to be interested in your case. Remember,
Speaker 1: their ultimate goal is to get the Supreme Court to
Speaker 1: look at this question that was decided in Fisher, and
Speaker 1: it was decided in the Michigan cases Grutter and Grats,
Speaker 1: to look at that question again and hold that actually,
Speaker 1: the Constitution does not allow colleges and universities to take
Speaker 1: race into account when admitting students to their schools and programs.
Speaker 1: The best way for them to do that is to
Speaker 1: get different courts of appeals to say different things. The
Speaker 1: Texas is in the Fifth Circuit, and they don't have
Speaker 1: another case in the Fifth Circuit, so that would be
Speaker 1: a reason to try to keep that case alive. I
Speaker 1: wonder if it's more personal than that that they're still
Speaker 1: upset with the University of Texas is where Miss Fisher
Speaker 1: did not get admitted, and maybe they still just have
Speaker 1: a bee in their bonnet about ut. I don't know,
Speaker 1: but as you said, they have three other cases and
Speaker 1: a lot of people are watching the Harvard case very
Speaker 1: closely currently at the Supreme Court. Supreme Court has shown
Speaker 1: some interest in the petition by asking the United States
Speaker 1: Full Ster General to file a brief in that case
Speaker 1: giving the government's views on whether or not the court
Speaker 1: should accept review of the case. And so that could
Speaker 1: get s f f A to its goal very quickly.
Speaker 1: So the binding administration dropped the Trump administration's lawsuit against
Speaker 1: Yale in light of that, How do you think the
Speaker 1: s G will advise the justices? I would expect that
Speaker 1: the Solicitor General, in a bien administration and going out
Speaker 1: a little bit on a limb here, will say that
Speaker 1: the Supreme Court should not review the Harvard case. The
Speaker 1: first circuit in Harvard followed existing law. There's no reason
Speaker 1: to review its decision. The Supreme Court does not typically
Speaker 1: reach out and review a case where the lower court
Speaker 1: has followed existing law and there is no split an
Speaker 1: authority between the courts of appeals. Thanks Audrey. That's Andrea
Speaker 1: Anderson of Bassbarian SIMS. And that's it for this edition
Speaker 1: of the Bloomberg Lawn Show. Remember you can always get
Speaker 1: the latest legal news on our Bloomberg Lawn Podcast. You
Speaker 1: can find them on Apple Podcasts, Spotify, and at www
Speaker 1: dot Bloomberg dot com, slash podcast slash Law. I'm June Grosso,
Speaker 1: Thanks so much for listening, and please turn into The
Speaker 1: Bloomberg Law Show every week night at ten p m.
Speaker 1: Eastern right here on Bloomberg Radio.