Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: The Court has effectively ended affirmative action in college admissions,
Speaker 2: and I strongly, strongly disagree with the course decision.
Speaker 1: President Joe Biden offered some of his strongest criticism of
Speaker 1: the Supreme Court after the Court's decision effectively barring universities
Speaker 1: from using race as a factor in admissions, rolling back
Speaker 1: decades of precedence, and removing a long standing method for
Speaker 1: bolstering campus diversity in a six to three vote down
Speaker 1: ideological lines. The Justice has found that the admissions programs
Speaker 1: at Harvard College and the University of North Carolina violated
Speaker 1: the Constitution's equal Protection clause, and Biden ordered the Department
Speaker 1: of Education to find ways to build more inclusive and
Speaker 1: diverse student bodies.
Speaker 2: Because the truth is, we all know it. Discrimination still
Speaker 2: exists in America. Discrimination still exists in America. Discrimination still
Speaker 2: exists in America. Today's decision does not change that.
Speaker 1: My guest is former United States Solicitor General Gregory Garr,
Speaker 1: a partner at Latham and Watkins. He successfully argued one
Speaker 1: of the seminal Supreme Court cases on affirmative action, Fisher
Speaker 1: versus the University of Texas greg Is this the end
Speaker 1: of affirmative action as.
Speaker 3: We know it?
Speaker 4: I think it's largely the end of the consideration of
Speaker 4: race as a standalone factor in college admissions. But the
Speaker 4: decision today doesn't prohibit universities from using race neutral ways
Speaker 4: of achieving a diverse class, and specifically doesn't prohibit universities
Speaker 4: from considering race at all. I think an important qualification
Speaker 4: in the decision is that applicants may discuss race insofar
Speaker 4: as it affected their own individual experiences, So the decision
Speaker 4: today does not require race blind admissions.
Speaker 1: The reaction from a lot of different directions has been
Speaker 1: that the sky is falling as far as affirmative action
Speaker 1: and diversity at colleges and universities. So do you think
Speaker 1: then that they're overreacting to the decision.
Speaker 4: I don't know if they're overreacting. This is a clear
Speaker 4: and strong repudiation of affirmative action as we know it,
Speaker 4: and as the Court had previously embraced it in the
Speaker 4: decisions leading up to this point. But I do think
Speaker 4: that once the Dost settles, schools will see that there
Speaker 4: are a number of different tools that remain in effect
Speaker 4: to achieve diversity in the classroom and on campus that
Speaker 4: simply don't take race as a standalone factor.
Speaker 1: Tell us about Chief Justice John Roberts reasoning and how
Speaker 1: he came to the conclusion that Harvard and UNC's policies
Speaker 1: violated the Constitution.
Speaker 4: The Chief Justice emphasize that race was unique under our constitution,
Speaker 4: as we all know, and that race can only be
Speaker 4: considered if it meets the strongest of constitutional analyzes strict scrutiny.
Speaker 4: And then he proceeded to analyze the Harvard in North
Speaker 4: Carolina plans here and found that they flunked that test
Speaker 4: in numerous different respects, the most important of which was
Speaker 4: a simply considered race as a standalone factor and not
Speaker 4: in the context of who that person is treating. In
Speaker 4: the Chief's view, race as essentially a stereotype, or considering
Speaker 4: race for race's sake, as he put it, and not
Speaker 4: in considering races it may have determined individual's own experience.
Speaker 4: The Chief Justice also emphasized that the schools had failed
Speaker 4: to identify any compelling and concrete interests that their plans
Speaker 4: were designed to address, essentially rejecting the interests that the
Speaker 4: Court had previously upheld in prior cases with respect to
Speaker 4: achieving diversity and a pipe line for leadership in universities
Speaker 4: across the country, and also emphasized that the schools had
Speaker 4: failed to identify any endpoint, and that last point was
Speaker 4: really an important consideration throughout the decision. Where in the
Speaker 4: Court's prior decisions, including the Gruder case in particular, the
Speaker 4: Court had said in the early two thousand that it
Speaker 4: viewed essentially twenty five years as the endpoint for the
Speaker 4: consideration of race in this way in university admissions, and
Speaker 4: the Court emphasized in several places in its decision, and
Speaker 4: Justice Kavanaugh emphasized in its concurrence that we had reached
Speaker 4: the endpoint even under Rud's own analysis, and so I
Speaker 4: think in their view the time for considering race had ended.
Speaker 4: But really, under the Chief Justices consideration of the constitutional ana,
Speaker 4: race as a standalone factor could not play a role.
Speaker 1: Robert's opinion didn't specifically say that the previous rulings like
Speaker 1: Gruder were overturned, but just as Clarence Thomas said in
Speaker 1: his concur ends, that the effect is basically the same,
Speaker 1: and that Grouter is for all intents and purpose.
Speaker 3: Is overruled.
Speaker 4: Do you agree with Thomas, Well, we typically don't give
Speaker 4: faith value to statements in a concurrent opinion or dissent.
Speaker 4: You'd look to the majority decision first, And it is
Speaker 4: quite important that the majority decision does not explicitly overrule
Speaker 4: the prior decisions Gruterer and Fisher and the like. And
Speaker 4: as to how that shapes out, we'll see. There's no
Speaker 4: question that the majority's analysis departs sharply from the prior decisions,
Speaker 4: and I think it would be hard to square those
Speaker 4: decisions with the majority's analysis. But the majority explicitly did
Speaker 4: distinguish those cases, including the Fisher case, and found that
Speaker 4: the plan in this case suffered from unique flaws.
Speaker 1: The court was split down audiological lines and the descents
Speaker 1: we're biting. Just as Katanji Brown Jackson wrote with let
Speaker 1: Them Eat Cake obliviousness, today the Court's majority pulls the
Speaker 1: rip and announces colorblindness for all by legal feat. But
Speaker 1: deeming race irrelevant in law does not make it so
Speaker 1: in life and justice. Sonya so to Mayor, in reading
Speaker 1: her descent from the bench, said, at one point, we
Speaker 1: shall overcome.
Speaker 3: How do you read the descents in this case?
Speaker 4: They're very strongly worded powerful descents. There's no question about that.
Speaker 4: And really the larger debate in this decision goes to
Speaker 4: the more fundamental question of whether or to what extent
Speaker 4: the Constitution is colorblind, going all the way back to
Speaker 4: the Civil War and the Civil War amendments and fundamental
Speaker 4: debates about how our society has considered race and could
Speaker 4: consider race. And there's a fundamental divide on the court
Speaker 4: and that respect, with the majority taking a position that
Speaker 4: race cannot be considered on its own, whether that's for
Speaker 4: benign or non benign purposes, and the descent taking a
Speaker 4: view that if you look at a history in our
Speaker 4: law that in fact we have allowed to consider of
Speaker 4: race for certain benign purposes to viable societal lens.
Speaker 1: As you mentioned before, Roberts said, universities can consider how
Speaker 1: race has affected an applicant's life, be it through discrimination, inspiration,
Speaker 1: or otherwise, but may not simply establish through application essays
Speaker 1: or other means the regime we.
Speaker 3: Hold unlawful today.
Speaker 1: And he said students must be treated based on his
Speaker 1: or her experiences as an individual, not on the basis
Speaker 1: of race.
Speaker 3: So what's the line here?
Speaker 1: Is there a clear line that schools can look at
Speaker 1: and figure out, you know, whether they're going to consider
Speaker 1: an applicants essay I mean, or.
Speaker 3: Is it fuzzy.
Speaker 4: I think it's fuzzy. I think this is likely to
Speaker 4: be the next battleground in this area. But I think
Speaker 4: it's clear from the court's decision that nothing in the
Speaker 4: court's decision in the court said this explicitly bars universities
Speaker 4: from considering an applicant's discussion of how his or her
Speaker 4: race affected his or her own life experiences or views.
Speaker 4: And that was important to the majority, and the majority
Speaker 4: would distinguish that from simply checking a box with your
Speaker 4: race and listing race as a standalone factor that wasn't
Speaker 4: tied to the individual's own experience. The majority was also
Speaker 4: quick to point out, though in the passage your reference,
Speaker 4: that it was not saying that universities could accomplish indirectly
Speaker 4: what the opinion forbids them now from accomplishing directly. But
Speaker 4: this is something that I'm sure universities will be carefully
Speaker 4: studying and we'll have to see how it plays out
Speaker 4: in their admissions practices.
Speaker 1: So Roberts dropped the footnote saying this decision doesn't affect
Speaker 1: military academies if there are lawsuits over that in the future,
Speaker 1: how could that distinction be maintained between colleges and universities
Speaker 1: and military academies.
Speaker 4: I think the key point there would be the nature
Speaker 4: of the interests that the military academies might assert in
Speaker 4: those cases, and the Court might view an interest which
Speaker 4: was framed in terms of developing the nation's military leaders
Speaker 4: and the unique experience and importance of race in that context,
Speaker 4: It's conceivable that the Court review that case differently. And
Speaker 4: it is notable and important that the Court specifically said
Speaker 4: today that it was not taking on that issue.
Speaker 1: So President Biden said, we can't let this decision be
Speaker 1: the last word, and he wants the Department of Education
Speaker 1: to explore ways or practices to help schools build more
Speaker 1: inclusive and diverse student bodies.
Speaker 3: Is that realistic?
Speaker 4: I mean sure, I think it is realistic. The decision
Speaker 4: doesn't prohibit universities from seeking diverse classes through holistic admissions
Speaker 4: that consider any number of other factors than race. It
Speaker 4: doesn't prohibit universities from considering race neutral criteria like financial
Speaker 4: means and applicants' first generation status, that language is spoken
Speaker 4: at home. It doesn't purport to prohibit race neutral tools
Speaker 4: like the top ten percent plan admitting students in the
Speaker 4: top ten percent of each cool as the University of
Speaker 4: Texas has so. There are a number of different means
Speaker 4: that universities can and have used to seek diversity in
Speaker 4: their classrooms and on campuses. The one thing that the
Speaker 4: decision today forbids, though, is the consideration of race as
Speaker 4: a standalone factor in that process.
Speaker 1: Do you think this decision could lead employers to rethink
Speaker 1: how they consider race in hiring.
Speaker 4: I'm sure employers will be taking a careful look at this.
Speaker 4: I mean, this decision obviously was focused on and by
Speaker 4: its terms, limited to the university admissions context, but certainly
Speaker 4: the court's discussion of the consideration of race and the
Speaker 4: strict scrutiny analysis is something that employers will want to
Speaker 4: take a close look at.
Speaker 3: She Justice once said.
Speaker 1: The famously said the way to stop race discrimination is
Speaker 1: to stop discriminating on the basis of race. And tell
Speaker 1: me if I'm reading too much into this. He wrote
Speaker 1: here that eliminating racial discrimination means eliminating all of it?
Speaker 3: Am I reading too much to think that? You know?
Speaker 3: There's more to come?
Speaker 4: Well, I think we have to take each decision on
Speaker 4: its own June, and you know, this case in a
Speaker 4: way was a long time in the making in terms
Speaker 4: of the Court's struggle in this area. But I think
Speaker 4: you're right to pick up on the Chief's own jurisprudence,
Speaker 4: which has been more of a straight line. And I
Speaker 4: think that the tenor of today's decision is very much
Speaker 4: in line with his previous remark that the way to
Speaker 4: stop discriminating on the race was to stop discriminating thesis
Speaker 4: of race, and that's the way that he and majority
Speaker 4: of his colleagues viewed the admissions practices here.
Speaker 1: So, Greg, on a personal note, when you argued Fisher
Speaker 1: the University of Texas at Austin in twenty sixteen, in
Speaker 1: which the Justice is upheld the admissions policy at the
Speaker 1: University of Texas at Austin on.
Speaker 3: A four to three vote.
Speaker 1: Did you envision that it would be some would say, toppled,
Speaker 1: or would be changed in such a way within just
Speaker 1: seven years.
Speaker 4: Well, that's a relatively short time. But this is an
Speaker 4: area in which the Court has been struggling for, you know, decades,
Speaker 4: and one in which they're very strongly held views, and
Speaker 4: so we certainly were pleased with the decision and Fisher,
Speaker 4: and you know, pleased that the Court's decision today distinguishes Fisher.
Speaker 4: But this is an area where the justices have been
Speaker 4: interested for some time, and you know, when they agreed
Speaker 4: to take on these cases a year or so ago,
Speaker 4: you know, it became clear that this was going to
Speaker 4: likely be a defining moment for the court stirst prudence
Speaker 4: in this area.
Speaker 1: So this is the culmination of nearly a decade of
Speaker 1: litigation initiated by Edward Blum and his anti affirmative action
Speaker 1: nonprofit called Students for Fair and Missions. He was behind
Speaker 1: the Fisher case too, I believe, so they switched strategy
Speaker 1: in this and they focused.
Speaker 3: On Asian Americans as plaintiffs.
Speaker 1: It's sort of disheartening to me and that one group
Speaker 1: can change the trajectory of the court with these strategic
Speaker 1: lawsuits that he's brought in different places, or was it
Speaker 1: just the right time for his litigation.
Speaker 4: Well, it's certainly true that mister Blum and his organization
Speaker 4: has taken on a unique role here, and it certainly
Speaker 4: is not the first time in our history that particular
Speaker 4: groups have sought to litigate particular issues. I mean one
Speaker 4: thing that the Court did take a close look at
Speaker 4: in this case was the standing of this particular group
Speaker 4: to present this claim, and it found that adequate. But
Speaker 4: having established standing, then this group, as much as any
Speaker 4: with a concrete interest in the issue, was permitted to
Speaker 4: bring the case forward.
Speaker 1: After his press statement, President Biden was asked by a
Speaker 1: reporter if this is a quote rogue court, and he said,
Speaker 1: this is not a normal court.
Speaker 3: Is that fair?
Speaker 4: I think others would view it differently, And I think,
Speaker 4: really he's got to look at the whole of the
Speaker 4: Court's work and not just a single decision, as important
Speaker 4: as that is. And really, if you take a step
Speaker 4: back and look at the decisions this term, I think
Speaker 4: you see a court of moving in all different directions
Speaker 4: in any of the more important cases, has reached more
Speaker 4: liberal results than conservative results. And so I think if
Speaker 4: you looked at that, you might see a different court.
Speaker 4: But I think in terms of one's views on where
Speaker 4: the court is, you'd have to take a much broader
Speaker 4: look at its caseload.
Speaker 1: Thanks for being on the show, Greg, It was great
Speaker 1: to have your insights in this area. That's former US
Speaker 1: Listitor General Gregory gar a partner Latham and Watkins. And
Speaker 1: that's it for this edition of The Bloomberg Law Show.
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