WEBVTT - Supreme Court Guts Affirmative Action 0:00:03.200 --> 0:00:08.440 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.360 --> 0:00:12.600 The Court has effectively ended affirmative action in college admissions, 0:00:13.240 --> 0:00:16.320 and I strongly, strongly disagree with the course decision. 0:00:17.040 --> 0:00:20.520 President Joe Biden offered some of his strongest criticism of 0:00:20.520 --> 0:00:25.600 the Supreme Court after the Court's decision effectively barring universities 0:00:25.640 --> 0:00:29.040 from using race as a factor in admissions, rolling back 0:00:29.120 --> 0:00:32.760 decades of precedence, and removing a long standing method for 0:00:32.880 --> 0:00:36.440 bolstering campus diversity in a six to three vote down 0:00:36.600 --> 0:00:40.840 ideological lines. The Justice has found that the admissions programs 0:00:40.840 --> 0:00:44.880 at Harvard College and the University of North Carolina violated 0:00:44.920 --> 0:00:49.479 the Constitution's equal Protection clause, and Biden ordered the Department 0:00:49.520 --> 0:00:52.879 of Education to find ways to build more inclusive and 0:00:52.960 --> 0:00:54.400 diverse student bodies. 0:00:54.760 --> 0:00:58.240 Because the truth is, we all know it. Discrimination still 0:00:58.480 --> 0:01:04.800 exists in America. Discrimination still exists in America. Discrimination still 0:01:04.800 --> 0:01:08.640 exists in America. Today's decision does not change that. 0:01:09.200 --> 0:01:12.839 My guest is former United States Solicitor General Gregory Garr, 0:01:13.040 --> 0:01:16.920 a partner at Latham and Watkins. He successfully argued one 0:01:16.959 --> 0:01:20.800 of the seminal Supreme Court cases on affirmative action, Fisher 0:01:20.880 --> 0:01:24.160 versus the University of Texas greg Is this the end 0:01:24.160 --> 0:01:26.040 of affirmative action as. 0:01:25.880 --> 0:01:26.440 We know it? 0:01:27.080 --> 0:01:30.160 I think it's largely the end of the consideration of 0:01:30.280 --> 0:01:34.120 race as a standalone factor in college admissions. But the 0:01:34.200 --> 0:01:40.160 decision today doesn't prohibit universities from using race neutral ways 0:01:40.200 --> 0:01:44.800 of achieving a diverse class, and specifically doesn't prohibit universities 0:01:44.800 --> 0:01:48.480 from considering race at all. I think an important qualification 0:01:48.800 --> 0:01:53.760 in the decision is that applicants may discuss race insofar 0:01:53.880 --> 0:01:58.400 as it affected their own individual experiences, So the decision 0:01:58.440 --> 0:02:01.760 today does not require race blind admissions. 0:02:02.480 --> 0:02:05.760 The reaction from a lot of different directions has been 0:02:05.840 --> 0:02:09.400 that the sky is falling as far as affirmative action 0:02:09.560 --> 0:02:13.640 and diversity at colleges and universities. So do you think 0:02:13.680 --> 0:02:16.200 then that they're overreacting to the decision. 0:02:17.000 --> 0:02:20.120 I don't know if they're overreacting. This is a clear 0:02:20.600 --> 0:02:25.680 and strong repudiation of affirmative action as we know it, 0:02:25.880 --> 0:02:29.280 and as the Court had previously embraced it in the 0:02:29.280 --> 0:02:31.680 decisions leading up to this point. But I do think 0:02:31.720 --> 0:02:35.120 that once the Dost settles, schools will see that there 0:02:35.160 --> 0:02:37.919 are a number of different tools that remain in effect 0:02:38.000 --> 0:02:42.520 to achieve diversity in the classroom and on campus that 0:02:42.600 --> 0:02:45.720 simply don't take race as a standalone factor. 0:02:46.240 --> 0:02:50.079 Tell us about Chief Justice John Roberts reasoning and how 0:02:50.120 --> 0:02:54.480 he came to the conclusion that Harvard and UNC's policies 0:02:55.040 --> 0:02:56.280 violated the Constitution. 0:02:56.840 --> 0:03:01.680 The Chief Justice emphasize that race was unique under our constitution, 0:03:01.960 --> 0:03:04.200 as we all know, and that race can only be 0:03:04.280 --> 0:03:09.400 considered if it meets the strongest of constitutional analyzes strict scrutiny. 0:03:09.919 --> 0:03:13.280 And then he proceeded to analyze the Harvard in North 0:03:13.320 --> 0:03:16.800 Carolina plans here and found that they flunked that test 0:03:16.960 --> 0:03:21.120 in numerous different respects, the most important of which was 0:03:21.160 --> 0:03:24.960 a simply considered race as a standalone factor and not 0:03:25.200 --> 0:03:28.760 in the context of who that person is treating. In 0:03:28.840 --> 0:03:32.960 the Chief's view, race as essentially a stereotype, or considering 0:03:33.080 --> 0:03:36.160 race for race's sake, as he put it, and not 0:03:36.320 --> 0:03:40.840 in considering races it may have determined individual's own experience. 0:03:41.280 --> 0:03:44.360 The Chief Justice also emphasized that the schools had failed 0:03:44.440 --> 0:03:49.520 to identify any compelling and concrete interests that their plans 0:03:49.560 --> 0:03:53.880 were designed to address, essentially rejecting the interests that the 0:03:53.880 --> 0:03:57.720 Court had previously upheld in prior cases with respect to 0:03:58.040 --> 0:04:02.560 achieving diversity and a pipe line for leadership in universities 0:04:02.760 --> 0:04:06.640 across the country, and also emphasized that the schools had 0:04:06.640 --> 0:04:10.120 failed to identify any endpoint, and that last point was 0:04:10.160 --> 0:04:13.920 really an important consideration throughout the decision. Where in the 0:04:13.960 --> 0:04:17.760 Court's prior decisions, including the Gruder case in particular, the 0:04:17.800 --> 0:04:20.400 Court had said in the early two thousand that it 0:04:20.480 --> 0:04:24.240 viewed essentially twenty five years as the endpoint for the 0:04:24.279 --> 0:04:27.800 consideration of race in this way in university admissions, and 0:04:27.839 --> 0:04:30.440 the Court emphasized in several places in its decision, and 0:04:30.600 --> 0:04:34.120 Justice Kavanaugh emphasized in its concurrence that we had reached 0:04:34.240 --> 0:04:37.800 the endpoint even under Rud's own analysis, and so I 0:04:37.839 --> 0:04:41.280 think in their view the time for considering race had ended. 0:04:41.279 --> 0:04:45.120 But really, under the Chief Justices consideration of the constitutional ana, 0:04:45.800 --> 0:04:49.080 race as a standalone factor could not play a role. 0:04:49.960 --> 0:04:54.880 Robert's opinion didn't specifically say that the previous rulings like 0:04:54.960 --> 0:04:59.159 Gruder were overturned, but just as Clarence Thomas said in 0:04:59.200 --> 0:05:02.920 his concur ends, that the effect is basically the same, 0:05:03.200 --> 0:05:05.960 and that Grouter is for all intents and purpose. 0:05:05.720 --> 0:05:06.760 Is overruled. 0:05:07.040 --> 0:05:10.840 Do you agree with Thomas, Well, we typically don't give 0:05:11.200 --> 0:05:14.560 faith value to statements in a concurrent opinion or dissent. 0:05:14.640 --> 0:05:17.040 You'd look to the majority decision first, And it is 0:05:17.560 --> 0:05:21.880 quite important that the majority decision does not explicitly overrule 0:05:21.920 --> 0:05:25.159 the prior decisions Gruterer and Fisher and the like. And 0:05:25.200 --> 0:05:27.960 as to how that shapes out, we'll see. There's no 0:05:28.080 --> 0:05:32.600 question that the majority's analysis departs sharply from the prior decisions, 0:05:33.160 --> 0:05:35.520 and I think it would be hard to square those 0:05:35.520 --> 0:05:39.719 decisions with the majority's analysis. But the majority explicitly did 0:05:39.760 --> 0:05:43.000 distinguish those cases, including the Fisher case, and found that 0:05:43.040 --> 0:05:46.760 the plan in this case suffered from unique flaws. 0:05:47.720 --> 0:05:51.560 The court was split down audiological lines and the descents 0:05:51.640 --> 0:05:55.800 we're biting. Just as Katanji Brown Jackson wrote with let 0:05:55.839 --> 0:05:59.560 Them Eat Cake obliviousness, today the Court's majority pulls the 0:05:59.640 --> 0:06:04.120 rip and announces colorblindness for all by legal feat. But 0:06:04.200 --> 0:06:07.000 deeming race irrelevant in law does not make it so 0:06:07.160 --> 0:06:10.040 in life and justice. Sonya so to Mayor, in reading 0:06:10.080 --> 0:06:13.039 her descent from the bench, said, at one point, we 0:06:13.120 --> 0:06:14.040 shall overcome. 0:06:14.720 --> 0:06:16.640 How do you read the descents in this case? 0:06:17.120 --> 0:06:21.240 They're very strongly worded powerful descents. There's no question about that. 0:06:21.440 --> 0:06:25.240 And really the larger debate in this decision goes to 0:06:25.600 --> 0:06:29.599 the more fundamental question of whether or to what extent 0:06:29.720 --> 0:06:33.320 the Constitution is colorblind, going all the way back to 0:06:33.360 --> 0:06:37.520 the Civil War and the Civil War amendments and fundamental 0:06:37.560 --> 0:06:41.839 debates about how our society has considered race and could 0:06:42.000 --> 0:06:45.080 consider race. And there's a fundamental divide on the court 0:06:45.279 --> 0:06:48.200 and that respect, with the majority taking a position that 0:06:48.320 --> 0:06:51.560 race cannot be considered on its own, whether that's for 0:06:51.880 --> 0:06:55.520 benign or non benign purposes, and the descent taking a 0:06:55.640 --> 0:06:57.560 view that if you look at a history in our 0:06:57.640 --> 0:07:00.360 law that in fact we have allowed to consider of 0:07:00.480 --> 0:07:04.480 race for certain benign purposes to viable societal lens. 0:07:04.760 --> 0:07:09.080 As you mentioned before, Roberts said, universities can consider how 0:07:09.200 --> 0:07:13.280 race has affected an applicant's life, be it through discrimination, inspiration, 0:07:13.400 --> 0:07:18.000 or otherwise, but may not simply establish through application essays 0:07:18.120 --> 0:07:19.520 or other means the regime we. 0:07:19.520 --> 0:07:21.080 Hold unlawful today. 0:07:21.840 --> 0:07:24.400 And he said students must be treated based on his 0:07:24.560 --> 0:07:27.560 or her experiences as an individual, not on the basis 0:07:27.560 --> 0:07:28.000 of race. 0:07:28.680 --> 0:07:30.320 So what's the line here? 0:07:30.400 --> 0:07:34.000 Is there a clear line that schools can look at 0:07:34.240 --> 0:07:36.640 and figure out, you know, whether they're going to consider 0:07:36.680 --> 0:07:38.760 an applicants essay I mean, or. 0:07:38.800 --> 0:07:39.760 Is it fuzzy. 0:07:40.160 --> 0:07:42.480 I think it's fuzzy. I think this is likely to 0:07:42.520 --> 0:07:45.600 be the next battleground in this area. But I think 0:07:45.600 --> 0:07:48.440 it's clear from the court's decision that nothing in the 0:07:48.480 --> 0:07:52.080 court's decision in the court said this explicitly bars universities 0:07:52.080 --> 0:07:54.800 from considering an applicant's discussion of how his or her 0:07:54.880 --> 0:07:58.680 race affected his or her own life experiences or views. 0:07:59.360 --> 0:08:02.120 And that was important to the majority, and the majority 0:08:02.120 --> 0:08:05.400 would distinguish that from simply checking a box with your 0:08:05.520 --> 0:08:09.520 race and listing race as a standalone factor that wasn't 0:08:09.560 --> 0:08:13.480 tied to the individual's own experience. The majority was also 0:08:13.680 --> 0:08:16.680 quick to point out, though in the passage your reference, 0:08:16.920 --> 0:08:20.560 that it was not saying that universities could accomplish indirectly 0:08:20.640 --> 0:08:25.120 what the opinion forbids them now from accomplishing directly. But 0:08:25.480 --> 0:08:28.440 this is something that I'm sure universities will be carefully 0:08:28.560 --> 0:08:31.880 studying and we'll have to see how it plays out 0:08:31.880 --> 0:08:33.120 in their admissions practices. 0:08:33.480 --> 0:08:36.960 So Roberts dropped the footnote saying this decision doesn't affect 0:08:37.160 --> 0:08:41.840 military academies if there are lawsuits over that in the future, 0:08:42.160 --> 0:08:46.760 how could that distinction be maintained between colleges and universities 0:08:46.760 --> 0:08:48.199 and military academies. 0:08:48.760 --> 0:08:51.880 I think the key point there would be the nature 0:08:51.920 --> 0:08:55.360 of the interests that the military academies might assert in 0:08:55.440 --> 0:08:59.319 those cases, and the Court might view an interest which 0:08:59.520 --> 0:09:04.160 was framed in terms of developing the nation's military leaders 0:09:04.160 --> 0:09:07.400 and the unique experience and importance of race in that context, 0:09:07.640 --> 0:09:10.640 It's conceivable that the Court review that case differently. And 0:09:10.720 --> 0:09:13.960 it is notable and important that the Court specifically said 0:09:14.000 --> 0:09:16.440 today that it was not taking on that issue. 0:09:16.600 --> 0:09:19.360 So President Biden said, we can't let this decision be 0:09:19.440 --> 0:09:22.360 the last word, and he wants the Department of Education 0:09:22.559 --> 0:09:26.920 to explore ways or practices to help schools build more 0:09:27.000 --> 0:09:29.280 inclusive and diverse student bodies. 0:09:29.640 --> 0:09:30.600 Is that realistic? 0:09:30.760 --> 0:09:34.080 I mean sure, I think it is realistic. The decision 0:09:34.240 --> 0:09:39.400 doesn't prohibit universities from seeking diverse classes through holistic admissions 0:09:39.400 --> 0:09:43.160 that consider any number of other factors than race. It 0:09:43.200 --> 0:09:47.920 doesn't prohibit universities from considering race neutral criteria like financial 0:09:48.000 --> 0:09:52.280 means and applicants' first generation status, that language is spoken 0:09:52.320 --> 0:09:56.000 at home. It doesn't purport to prohibit race neutral tools 0:09:56.040 --> 0:09:58.800 like the top ten percent plan admitting students in the 0:09:58.800 --> 0:10:01.520 top ten percent of each cool as the University of 0:10:01.559 --> 0:10:04.160 Texas has so. There are a number of different means 0:10:04.200 --> 0:10:08.360 that universities can and have used to seek diversity in 0:10:08.400 --> 0:10:11.280 their classrooms and on campuses. The one thing that the 0:10:11.360 --> 0:10:14.959 decision today forbids, though, is the consideration of race as 0:10:14.960 --> 0:10:16.880 a standalone factor in that process. 0:10:17.240 --> 0:10:20.559 Do you think this decision could lead employers to rethink 0:10:20.640 --> 0:10:22.800 how they consider race in hiring. 0:10:23.160 --> 0:10:26.240 I'm sure employers will be taking a careful look at this. 0:10:26.400 --> 0:10:29.840 I mean, this decision obviously was focused on and by 0:10:29.880 --> 0:10:34.240 its terms, limited to the university admissions context, but certainly 0:10:34.320 --> 0:10:37.520 the court's discussion of the consideration of race and the 0:10:37.520 --> 0:10:40.640 strict scrutiny analysis is something that employers will want to 0:10:40.640 --> 0:10:41.600 take a close look at. 0:10:41.840 --> 0:10:42.920 She Justice once said. 0:10:42.960 --> 0:10:45.640 The famously said the way to stop race discrimination is 0:10:45.679 --> 0:10:48.959 to stop discriminating on the basis of race. And tell 0:10:49.000 --> 0:10:51.200 me if I'm reading too much into this. He wrote 0:10:51.200 --> 0:10:55.800 here that eliminating racial discrimination means eliminating all of it? 0:10:56.120 --> 0:10:57.960 Am I reading too much to think that? You know? 0:10:58.000 --> 0:10:58.840 There's more to come? 0:10:59.280 --> 0:11:02.080 Well, I think we have to take each decision on 0:11:02.520 --> 0:11:05.480 its own June, and you know, this case in a 0:11:05.520 --> 0:11:07.880 way was a long time in the making in terms 0:11:07.880 --> 0:11:10.839 of the Court's struggle in this area. But I think 0:11:10.840 --> 0:11:13.800 you're right to pick up on the Chief's own jurisprudence, 0:11:13.840 --> 0:11:16.880 which has been more of a straight line. And I 0:11:16.920 --> 0:11:20.000 think that the tenor of today's decision is very much 0:11:20.160 --> 0:11:23.400 in line with his previous remark that the way to 0:11:23.440 --> 0:11:27.000 stop discriminating on the race was to stop discriminating thesis 0:11:27.080 --> 0:11:29.520 of race, and that's the way that he and majority 0:11:29.559 --> 0:11:32.800 of his colleagues viewed the admissions practices here. 0:11:33.920 --> 0:11:38.000 So, Greg, on a personal note, when you argued Fisher 0:11:38.720 --> 0:11:42.080 the University of Texas at Austin in twenty sixteen, in 0:11:42.120 --> 0:11:45.360 which the Justice is upheld the admissions policy at the 0:11:45.480 --> 0:11:47.320 University of Texas at Austin on. 0:11:47.320 --> 0:11:48.960 A four to three vote. 0:11:48.800 --> 0:11:52.280 Did you envision that it would be some would say, toppled, 0:11:52.480 --> 0:11:56.160 or would be changed in such a way within just 0:11:56.200 --> 0:11:56.880 seven years. 0:11:57.520 --> 0:11:59.679 Well, that's a relatively short time. But this is an 0:11:59.720 --> 0:12:03.720 area in which the Court has been struggling for, you know, decades, 0:12:04.080 --> 0:12:07.920 and one in which they're very strongly held views, and 0:12:08.000 --> 0:12:11.079 so we certainly were pleased with the decision and Fisher, 0:12:11.160 --> 0:12:15.040 and you know, pleased that the Court's decision today distinguishes Fisher. 0:12:15.280 --> 0:12:18.240 But this is an area where the justices have been 0:12:18.440 --> 0:12:22.000 interested for some time, and you know, when they agreed 0:12:22.040 --> 0:12:24.840 to take on these cases a year or so ago, 0:12:25.160 --> 0:12:26.920 you know, it became clear that this was going to 0:12:27.160 --> 0:12:29.680 likely be a defining moment for the court stirst prudence 0:12:29.720 --> 0:12:30.240 in this area. 0:12:31.000 --> 0:12:33.840 So this is the culmination of nearly a decade of 0:12:33.920 --> 0:12:39.440 litigation initiated by Edward Blum and his anti affirmative action 0:12:39.640 --> 0:12:43.320 nonprofit called Students for Fair and Missions. He was behind 0:12:43.400 --> 0:12:47.160 the Fisher case too, I believe, so they switched strategy 0:12:47.200 --> 0:12:49.320 in this and they focused. 0:12:48.880 --> 0:12:51.359 On Asian Americans as plaintiffs. 0:12:51.840 --> 0:12:54.920 It's sort of disheartening to me and that one group 0:12:55.360 --> 0:12:59.880 can change the trajectory of the court with these strategic 0:13:00.160 --> 0:13:04.120 lawsuits that he's brought in different places, or was it 0:13:04.160 --> 0:13:06.199 just the right time for his litigation. 0:13:06.600 --> 0:13:09.679 Well, it's certainly true that mister Blum and his organization 0:13:09.800 --> 0:13:12.920 has taken on a unique role here, and it certainly 0:13:12.960 --> 0:13:15.040 is not the first time in our history that particular 0:13:15.080 --> 0:13:18.120 groups have sought to litigate particular issues. I mean one 0:13:18.120 --> 0:13:20.600 thing that the Court did take a close look at 0:13:20.640 --> 0:13:24.000 in this case was the standing of this particular group 0:13:24.040 --> 0:13:26.960 to present this claim, and it found that adequate. But 0:13:27.120 --> 0:13:31.080 having established standing, then this group, as much as any 0:13:31.120 --> 0:13:33.920 with a concrete interest in the issue, was permitted to 0:13:33.960 --> 0:13:35.080 bring the case forward. 0:13:35.520 --> 0:13:39.480 After his press statement, President Biden was asked by a 0:13:39.480 --> 0:13:42.679 reporter if this is a quote rogue court, and he said, 0:13:43.200 --> 0:13:44.880 this is not a normal court. 0:13:45.160 --> 0:13:45.880 Is that fair? 0:13:46.040 --> 0:13:48.600 I think others would view it differently, And I think, 0:13:48.640 --> 0:13:50.280 really he's got to look at the whole of the 0:13:50.320 --> 0:13:53.840 Court's work and not just a single decision, as important 0:13:53.880 --> 0:13:56.240 as that is. And really, if you take a step 0:13:56.280 --> 0:13:58.719 back and look at the decisions this term, I think 0:13:58.760 --> 0:14:01.760 you see a court of moving in all different directions 0:14:01.840 --> 0:14:04.840 in any of the more important cases, has reached more 0:14:04.840 --> 0:14:08.559 liberal results than conservative results. And so I think if 0:14:08.559 --> 0:14:10.959 you looked at that, you might see a different court. 0:14:11.160 --> 0:14:14.360 But I think in terms of one's views on where 0:14:14.400 --> 0:14:17.000 the court is, you'd have to take a much broader 0:14:17.040 --> 0:14:18.079 look at its caseload. 0:14:18.400 --> 0:14:20.640 Thanks for being on the show, Greg, It was great 0:14:20.640 --> 0:14:23.960 to have your insights in this area. That's former US 0:14:24.000 --> 0:14:28.360 Listitor General Gregory gar a partner Latham and Watkins. And 0:14:28.400 --> 0:14:30.560 that's it for this edition of The Bloomberg Law Show. 0:14:30.920 --> 0:14:33.280 Remember you can always get the latest legal news on 0:14:33.320 --> 0:14:37.600 our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 0:14:37.760 --> 0:14:42.800 and at www dot bloomberg dot com slash podcast Slash Law, 0:14:43.200 --> 0:14:45.800 And remember to tune into The Bloomberg Law Show every 0:14:45.840 --> 0:14:49.760 weeknight at ten pm Wall Street Time. I'm June Grosso 0:14:49.880 --> 0:14:51.440 and you're listening to Bloomberg