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Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.

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Speaker 2: A ninety year old legal precedent setting up independent agencies

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Speaker 2: isn't dead yet, but after the Supreme Court's emergency order

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Speaker 2: last week allowing President Trump to fire members of two

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Speaker 2: independent agencies, the effect may be the same. The Court's

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Speaker 2: nineteen thirty five ruling in Humphrey's Executor said that Congress

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Speaker 2: in some instances can set up agencies that are independent

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Speaker 2: from the executive branch and whose members can only be

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Speaker 2: fired for cause. But in recent years the Supreme Court

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Speaker 2: has significantly cut back on Humphreys, and last Thursday, over

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Speaker 2: the descents of three liberal justices, the Court allowed Trump

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Speaker 2: to fire National Labor Relations Board member Gwyn Wilcox and

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Speaker 2: Merit Systems Protection Board member Kathy Harris without cause as

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Speaker 2: their legal challenges play out. My guest is Lauren McFerrin,

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Speaker 2: senior fellow at the Century Foundation and former chairman of

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Speaker 2: the NLRB in the Biden administration, tell us about the

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Speaker 2: Supreme Court's emergency order last week.

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Speaker 3: So what the Supreme Court did was stay and order

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Speaker 3: of the District Court, which had ordered the reinstatement of

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Speaker 3: Gwynn Wilcox and Kathy Harris, and the removal of Gwynn

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Speaker 3: and Kathy from office was clearly contrary to statute. The

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Speaker 3: President is prohibited by both the National Labor Relations Act

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Speaker 3: and the law governing the Merit Systems Protection Board from

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Speaker 3: removing people from office except for cause, and no qualifying

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Speaker 3: cause was given to either of these officials, so the

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Speaker 3: action was clearly contrary to law. And so the President

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Speaker 3: kind of took the law into his own hands here

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Speaker 3: and basically said, I don't care what Congress wanted, and

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Speaker 3: I don't have to follow Supreme Court precedent, and he

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Speaker 3: removed them from office anyway. The Supreme Court then stepped

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Speaker 3: in and on what's called the shadow dockets, which is

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Speaker 3: supposed to be for emergency relief and emergency orders, indicated

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Speaker 3: that the President was right to do that, but it

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Speaker 3: is okay for him to ignore Congress and to ignore

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Speaker 3: Supreme Court precedent, and kind of went to extraordinary lengths

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Speaker 3: to keep that result in place because they basically think

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Speaker 3: the President took a good gamble about their plans to

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Speaker 3: revisit precedents. So it was very unusual from a court

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Speaker 3: process perspective. The so called shadow docket is supposed to

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Speaker 3: be used for, like I said, emergencies. It's typically also

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Speaker 3: used to preserve the doctrinal status quo, not to overrule it.

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Speaker 3: You're certainly not supposed to use the shadow docket to

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Speaker 3: effectively change precedent without the benefit of full briefing and

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Speaker 3: careful consideration, which is what the descent pointed out. So

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Speaker 3: it was a procedurally very odd thing to do, but

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Speaker 3: it certainly sent a very strong signal about where the

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Speaker 3: Supreme Court is headed in terms of whether it plans

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Speaker 3: to overrule Humphrey's Executor, which just the decision that had

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Speaker 3: originally upheld Congress's ability to create positions like this that

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Speaker 3: can only be removed from office by the President for cause.

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Speaker 2: So, according to the dissenting justices, the effect of this

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Speaker 2: is essentially to overturn Humphrey's Executor.

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Speaker 3: I think that will be the practical reads that a

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Speaker 3: lot of people take away from it. Now. The Majority

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Speaker 3: did ultimately hedge on that question. The Majority said that

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Speaker 3: they're not ultimately deciding whether these two agencies fall within

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Speaker 3: the recognized exceptions of Humphrey's executor. That does suggest that

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Speaker 3: there still will be some recognized exception, but they signaled

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Speaker 3: pretty clearly that they didn't think either the National Labor

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Speaker 3: Relations Board of the Merit System's Protection Board would fall

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Speaker 3: within that exception.

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Speaker 2: Tell us about Humphrey's executor, it's sort of been on

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Speaker 2: the way out or people have been calling for its

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Speaker 2: demise for a long time.

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Speaker 3: I mean Humphrey's Executive. There's no question that it is

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Speaker 3: still good law. The case that everyone cites for the

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Speaker 3: proposition that Humphrey's Executor is on the way out the

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Speaker 3: door is a case called steal a law, and steal

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Speaker 3: a law was very careful to say that Humphreys still

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Speaker 3: is good law and that they were not revisiting Humphreys.

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Speaker 3: But what they did was that they certainly said they

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Speaker 3: were not expanding Humphrey's Executor, who encompassed independent agencies that

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Speaker 3: aren't like the Federal Trade Commission that was the original

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Speaker 3: subject of Humphreys itself. So they were unwilling to expand

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Speaker 3: the reach of Humfrey's Executor. This exception that allows Congress

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Speaker 3: to create entities who leaders can't be removed except for cause.

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Speaker 3: They were going to expand that exception to a single

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Speaker 3: headed agency like the Consumer Financial Protection Bureau. But it

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Speaker 3: is very clear that Humphreys at this point in time,

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Speaker 3: or at least until this order issued, that Humphreys itself.

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Speaker 3: But the exception it creates for quasi judicial and quasi

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Speaker 3: legislative agencies that are structured like a multi member body

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Speaker 3: like the National Labor Relations Board of the Merit Systems

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Speaker 3: Protection Board still exists, and that exception is still valid.

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Speaker 2: The Supreme Court in recent years has cut back on Humphreys.

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Speaker 2: I mean, it's still standing, but is it in sort

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Speaker 2: of chatters.

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Speaker 3: I think it's safe to say that the Court has

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Speaker 3: constrained its reach and has at times, you know, one

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Speaker 3: or two justices in a separate opinion or indicta in

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Speaker 3: a majority opinion, have called into question its continuing viability. Basically,

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Speaker 3: this notion that there can be an entity, even if

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Speaker 3: it is structured like a multi member body, even if

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Speaker 3: it is a body of experts that's supposed to make

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Speaker 3: expert decisions, that there could be an entity like this

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Speaker 3: that would not be sufficiently executive in the nature of

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Speaker 3: the powers that it is exercising, such that its leaders

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Speaker 3: should not be removable by the President. I mean, that's

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Speaker 3: the core issue here for proponents of the unitary executive

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Speaker 3: theory on the Court is that any entity that is

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Speaker 3: exercising any level of executive power should be removable from

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Speaker 3: office by the President. And the Court has certainly said

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Speaker 3: signals in recent years that it thinks the scope of

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Speaker 3: the universe of agencies that might actually not exercise any

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Speaker 3: executive power is minimal or non existent.

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Speaker 2: The justices took pains to point out that this doesn't

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Speaker 2: affect the FED. The FED is different.

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Speaker 3: Yes, that was a really strange little red flag in

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Speaker 3: this decision. It kind of comes out of nowhere in

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Speaker 3: the decision. They might as well have basically said, oh,

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Speaker 3: by the way, President Trump, please don't take this order

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Speaker 3: as a green light. You can fire the chair of

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Speaker 3: the FED. And they carved out the fad in like

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Speaker 3: two sentences. What it wasn't an issue in the case.

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Speaker 3: And they carved out the said by making what is

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Speaker 3: basically a factual observation about the set, which is that

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Speaker 3: it is uniquely structured and it has a distinct historical tradition.

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Speaker 3: That is actually true of many independent agencies right now,

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Speaker 3: my own agency that I used to work for, the

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Speaker 3: National Labor Relations for that is certainly true. It is

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Speaker 3: uniquely structured, and it has a distinct historical tradition, But

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Speaker 3: that doesn't speak to the reasons why the FED is independent,

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Speaker 3: which are fundamentally similar to the reasons that other independent

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Speaker 3: agencies are independent. The reason that Congress chose to create

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Speaker 3: independent agencies is because it wanted to have entities, even

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Speaker 3: entities within the executive branch, that made decisions based on expertise,

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Speaker 3: and that made decisions and were capable of making decisions

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Speaker 3: that might be in the short run politically unpopular, but

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Speaker 3: in the long run in the best interest of the country.

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Speaker 3: And it's very easy to see, of course, how that

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Speaker 3: plays out in the context of the FED, and particularly

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Speaker 3: when the FED is wearing its monetary policy hat, it's

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Speaker 3: very easy to see why it's going to have to

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Speaker 3: make decisions that are short term politically unpopular but long

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Speaker 3: term beneficial to the country. But the SEED is not

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Speaker 3: unique in that regard. And one agency that leads to

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Speaker 3: my mind, for example, is the Consumer Product Safety Commission.

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Speaker 3: Sometimes it is very politically unpopular to find a product

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Speaker 3: to be unsafe, to pull a product off the market,

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Speaker 3: but it might well be in the long term public interest.

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Speaker 3: So there's not something that makes the FED distinguishable in

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Speaker 3: a principled manner from other independent agencies when it comes

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Speaker 3: to the reason for its independence.

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Speaker 2: Let's say the Supreme Court does get rid of Humphrey's Executor.

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Speaker 2: What might the repercussions be, Well, it would.

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Speaker 3: Depend on how the Supreme Court did it. There's a

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Speaker 3: lots of people who predict about these things, and there's

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Speaker 3: a group of predictors to say that they will basically

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Speaker 3: get rid of Humphrey's Executor, but carve out the set,

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Speaker 3: or at least the set in its monetary policy role.

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Speaker 3: I think there's an argument to be made that they

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Speaker 3: could also kind of fl the baby in different ways.

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Speaker 3: I think one of the most difficult challenges that we

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Speaker 3: will have in a post Humphrey's Executor world if Humphrey's

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Speaker 3: Executor is swept off the book, is what to do

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Speaker 3: with agencies that are primarily adjudicative, you know, that do

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Speaker 3: business as courts basically. And it's very hard to imagine

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Speaker 3: how an agency that's sposed to function as a court

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Speaker 3: will function when it's adjudicators can be fired for the

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Speaker 3: outcome of individual decisions. So I think there's potentially a

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Speaker 3: chance that the Court could also look at the various

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Speaker 3: functions that agencies are performing and say these are executives

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Speaker 3: and these are not executives. And this order, being a

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Speaker 3: preliminary order, doesn't delve into that at all. But you

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Speaker 3: could have a course that says, well, if an agency

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Speaker 3: is making rules, it is by nature executive, because rulemaking

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Speaker 3: is an executive function. But leave open the question, for example,

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Speaker 3: of whether if an agency was truly just a court system,

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Speaker 3: you know, like the tax courts or something like that,

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Speaker 3: whether that potentially could be treated differently. So I think

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Speaker 3: it's a question of whether the court will just wipe

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Speaker 3: Pumper's executor off the books altogether, with some possible car

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Speaker 3: about for the FED and monetary policy, or if it

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Speaker 3: will kind of pick and choose which agency functions it

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Speaker 3: seems to be so executive in nature that the president

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Speaker 3: must be able to control them.

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Speaker 2: And as far as your old agency, the NLRB, what

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Speaker 2: effect would it have if the president is able to

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Speaker 2: fire board members without cause.

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Speaker 3: I think it's really hard to overstate how different that

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Speaker 3: would be from the way that the agency operates now.

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Speaker 3: The NLRB and many other adjudicative agencies. Like I said,

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Speaker 3: the NB does business primarily by deciding cases like a court,

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Speaker 3: and we as judges never had to worry about whether

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Speaker 3: our decisions were going to be politically popular or politically unpopular,

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Speaker 3: or whether we were deciding a case in favor of

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Speaker 3: somebody that the president was friendly with or someone that

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Speaker 3: the president was not friendly with. I think you can

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Speaker 3: see this playing out totally differently in a world where

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Speaker 3: board members, I eeds, the judges could be fired for

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Speaker 3: the outcome of a particular case. So it will go

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Speaker 3: from being an adjudicator that jealously guards the integrity of

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Speaker 3: its adjudicative process and tries to treat like cases similarly

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Speaker 3: whenever possible, to being a fundamentally different and political entity

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Speaker 3: where judges are making decisions at the peril of their

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Speaker 3: job based on their predictions about whether they'll face backlash

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Speaker 3: for them or not.

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Speaker 2: Thanks for joining me, Lauren. That's Lauren McFerrin, senior fellow

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Speaker 2: at the Century Foundation. Coming up, Trump versus Harvard. This

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Speaker 2: is Bloomberg. Donald Trump has been waging a campaign to

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Speaker 2: pressure elite colleges to make a wide range of policy changes,

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Speaker 2: and Harvard University, the nation's oldest and richest university, has

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Speaker 2: borne the brunt of it.

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Speaker 1: They have fifty two billion dollars as an endowment. They

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Speaker 1: have fifty two billion dollars, and this country's paying billions

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Speaker 1: and billions of dollars and then give student loans and

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Speaker 1: they have to pay back the loans. So Harvard's going

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Speaker 1: to have to change its ways.

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Speaker 2: The administration has already moved to freeze more than two

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Speaker 2: point six billion dollars in federal research money and block

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Speaker 2: Harvard's ability to enroll international students. The latest escalation, the

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Speaker 2: administration is moving to cancel all remaining federal contracts with Harvard,

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Speaker 2: worth an estimated one hundred million dollars, and Trump is

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Speaker 2: also threatening to divert three billion dollars of grant money

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Speaker 2: away from Harvard and give it to trade schools. My

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Speaker 2: guest is Jody Farie. He's a partner in the higher

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Speaker 2: education practice at Church Church, Hittle and Antrim. Let's start

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Speaker 2: with the Secretary of Homeland Security, Christie Nome, revoking Harvard's

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Speaker 2: certification to host international students. And it didn't take long

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Speaker 2: for a judge to use you a temporary restraining order

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Speaker 2: to stop that from going through. What was Harvard's argument

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Speaker 2: against what the Department of Homeland Security had done.

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Speaker 4: I think what Harvard's position was is that that the

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Speaker 4: very act of doing that was you know, quashing their

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Speaker 4: First Amendment free speech rights because of the nature of

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Speaker 4: what they were saying. You know, they were indicating Baby

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Speaker 4: administration were indicating that Harvard was, you know, fostering and

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Speaker 4: aiding and abetting this anti Semitic behavior there on campus.

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Speaker 4: And you know, and I think Harvard's saying, hey, you're

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Speaker 4: basically holding us hostage, which is in fact what that is.

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Speaker 4: It is a you know, holding an institution hostage and

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Speaker 4: unless they've been to the will of an administration and

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Speaker 4: you know, and that's not.

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Speaker 3: Their right to do. But there was no process to

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Speaker 3: it at all.

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Speaker 4: Right, it was it was a swipe of the pen.

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Speaker 4: It was a very sweeping action taken because what Harvard

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Speaker 4: was being asked to do was to kind of fling

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Speaker 4: open the books for a fishing expedition into the you know,

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Speaker 4: acts and actions and behaviors and academic files of seven

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Speaker 4: thousand international students without any kind of probable cause to

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Speaker 4: do so. Right there was they were being asked. It

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Speaker 4: was just such an overreach, such an overbroad request, and

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Speaker 4: that is I think part of what Harvard was saying,

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Speaker 4: you can't do this. You can't just shut this process

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Speaker 4: down just because we wouldn't bend to the will of

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Speaker 4: an inappropriate request in the first place. You know, with

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Speaker 4: no due process whatsoever.

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Speaker 2: Due process claims and claims of not following the Administrative

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Speaker 2: Procedures Act seem to be frequent complaints against Trump administration actions.

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Speaker 4: I think that's probably the most shocking part of what

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Speaker 4: we're seeing here, is that these things are happening with

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Speaker 4: a swipe of a pen instead of any kind of

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Speaker 4: due process. That is is sort of foundational to who

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Speaker 4: we are as a nation. Right, So we're going to

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Speaker 4: with a swipe of the pen, we're going to you know,

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Speaker 4: take away billions of dollars in research funding, no matter

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Speaker 4: what it was for, right, no matter the importance or

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Speaker 4: the value of it. We're going to threaten your tax

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Speaker 4: exempt status without any without any process, you know, with

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Speaker 4: without the even the notion that you lose tax exempt

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Speaker 4: status for a very finite number of reasons after a

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Speaker 4: very lengthy process. But that's been threatened, you know, taking

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Speaker 4: away a civas registrations with no process whatsoever. Doing these

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Speaker 4: things by a swipe of the pen is a really

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Speaker 4: dangerous government overreach, and Harvard is an easy target. It's

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Speaker 4: not something that the American public is likely to rally behind.

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Speaker 4: It's not not something that everyone in America Harbor's great

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Speaker 4: warm feelings. But the actions being taken here are dangerous

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Speaker 4: because with no DO process whatsoever, if this can happen

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Speaker 4: to Harvard, and this is what I think is so

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Speaker 4: important for folks to remember, this can happen to three

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Speaker 4: nine hundred non elite, non selective educational institutions that are

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Speaker 4: doing really important work in communities across the country, I

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Speaker 4: think that's what's important.

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Speaker 2: So the blocking of the grants was the first thing

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Speaker 2: I believe that Harvard took to court. But I don't

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Speaker 2: think those grants have been restored.

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Speaker 4: Not only have they not been unfrozen, but they've they

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Speaker 4: you know, they've also been told not to apply for

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Speaker 4: new grants. And so I think I used the term earlier.

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Speaker 4: It is my opinion that we are in a hostage

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Speaker 4: situation here and that amount of funding for really critical

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Speaker 4: research in progress is creating a hostage situation where that

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Speaker 4: amount of pressure, and you know, Harvard is doing everything

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Speaker 4: in their power to backfill that with private, private funds

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Speaker 4: but that is not going to last forever. Right, That's

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Speaker 4: not a forever solution. That is a temporary solution to

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Speaker 4: an existential problem. But those who are going to be

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Speaker 4: affected by that, that's all of us, right, That's that

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Speaker 4: is all of us. So yeah, no, those, to my knowledge,

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Speaker 4: those have not been unfrozen.

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Speaker 2: The Trump administration is moving to cancel all remaining federal

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Speaker 2: contracts with Harvard, worth an estimated one hundred million dollars,

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Speaker 2: and in a letter seen by Bloomberg News, Federal Acquisition

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Speaker 2: Service Commissioner Josh Gruenbaum, in directing federal agencies, alleges that

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Speaker 2: Harvard has continued to engage in race discrimination, including in

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Speaker 2: its admissions process and in other areas of student life.

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Speaker 2: And he referred to alleged discrimination at the Harvard Law

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Speaker 2: Review and a federal task force did recently call out

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Speaker 2: the Harvard Law Review's award of a sixty five thousand

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Speaker 2: dollars fellowship to a protester who faced criminal charges for

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Speaker 2: assaulting a Jewish student on campus. How does that all

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Speaker 2: fit in?

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Speaker 4: Well, I think you're asking, though, is there a way

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Speaker 4: of canceling all contracts based on one that may have

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Speaker 4: been inappropriate? Right, so again, and what these are are

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Speaker 4: sweeping overreaches. So I think in the letters that Harvard

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Speaker 4: has responded, they have often said, we can do better.

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Speaker 4: We recognize we can do better, but to cancel everything

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Speaker 4: based on one with a swipe of the pen, that

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Speaker 4: is an overreach. And so it was the same way

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Speaker 4: with admissions, and Harvard's response was, we can do better.

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Speaker 4: Let us work. But this is a negotiating tactic. This

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Speaker 4: is what we're seeing here. Is not a direct request

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Speaker 4: to remedy a particular situation that may or may not

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Speaker 4: be inappropriate. What it is is a negotiating tactic to

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Speaker 4: try and accomplish the whole slate of requests that were sent.

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Speaker 4: And it's just it's a way of increasing pressure on

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Speaker 4: Harvard to bend to the will of an administration that

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Speaker 4: wants certain things right, and so far Harvard has been

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Speaker 4: unwilling to do that. So I consider this just one

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Speaker 4: more negotiating tactic. Though it may have been an instance

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Speaker 4: of you know, something that may in and of itself,

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Speaker 4: when you cancel everything based on that, that's too much.

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Speaker 4: You've gone too far.

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Speaker 2: You mentioned the president wants to revoke the school's tax

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Speaker 2: exempt status. Tell us about that and what kind of

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Speaker 2: roadblocks it might face.

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Speaker 4: So there is a there's a well worn path for

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Speaker 4: revoking tax exempt status, beginning with a you know, an audit,

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Speaker 4: an IRS audit of the whether or not the institution

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Speaker 4: has retained its tax exempt purpose, has done its appropriate documentation.

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Speaker 4: You know, it's done it, it's tax filings, it's not

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Speaker 4: engaged in inappropriate actions, you know, political actions and other

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Speaker 4: things like that, so inappropriate lobbying something, you know, those

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Speaker 4: kind of things. But what has happened here is that

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Speaker 4: the administration has just threatened to just revoke it, as

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Speaker 4: if that is a thing that can be done, because

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Speaker 4: they're indicating that Harvard's no longer serving its tax exempt purpose.

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Speaker 4: But the Harvard's tax exempt purpose is education. And it's

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Speaker 4: difficult to make the argument that that Harvard is no

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Speaker 4: longer engaging in its tax exempt purpose education, you know,

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Speaker 4: when it very clearly is. And so again, I think

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Speaker 4: these mounting pressures are negotiating tactics. And you know, were

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Speaker 4: it not for the fact that Harvard is well enough

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Speaker 4: resourced to defend itself, they might be quite effective. And

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Speaker 4: we've seen that other places. It concerns me for less

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Speaker 4: resourced institutions that wouldn't be able to necessarily defend themselves.

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Speaker 4: I mean, this is an extraordinary slate of a tax

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Speaker 4: against a particular institution. And as I said, Harvard is

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Speaker 4: you know, it's an easy target, not one that's going

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Speaker 4: to elicit a load of public sympathy, but it should

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Speaker 4: because of the risk to lots of other institutions that

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Speaker 4: stand in the same stead. So, for example, the tax

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Speaker 4: exempt status, if you can revoke Harvard's tax exempt status,

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Speaker 4: which was granted to them for the purpose of education,

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Speaker 4: then you could do that to a smaller private institution

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Speaker 4: for not bending to the will or to the request

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Speaker 4: of an administration. There would be no difference, right, So

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Speaker 4: every private institution in the country holds a tax exempt

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Speaker 4: status just like Harvard does. And if we can take theirs,

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Speaker 4: then then that extends to those who are far less

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Speaker 4: well resourced and less able to withstand those kinds of attax.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with Jody Ferris and we'll talk about the

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Speaker 2: concerns of other educational institutions. I'm June Grosso. When you're

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Speaker 2: listening to Bloomberg, the future of nearly seven thousand and

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Speaker 2: international students at Harvard University hangs in the balance this week,

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Speaker 2: with a hearing set for Thursday to determine whether a

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Speaker 2: temporary block should be extended. Last week, Judge Allison Burrows

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Speaker 2: temporarily blocked Trump's move to bar Harvard University from enrolling

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Speaker 2: foreign students.

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Speaker 1: Part of the problem with Harvard is that they're about

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Speaker 1: thirty one percent, almost thirty one percent of foreigners coming

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Speaker 1: to Harvard. We have Americans that want to go there

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Speaker 1: and to other places.

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Speaker 2: The administration claims that Harvard failed to provide sufficient information

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Speaker 2: about misconduct by foreign students, and is pushing for changes

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Speaker 2: to the university's governance, admissions, and faculty hiring, as well

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Speaker 2: as its handling of anti semitism on campus. I've been

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Speaker 2: talking with Jody Ferris, a partner in the higher education

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Speaker 2: practice at Church, Church, Hiddle and Antrim. So, Jody, have

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Speaker 2: you gotten calls from any of you your education clients

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Speaker 2: with concerns based on what's happened to Harvard?

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Speaker 4: I do you know? I just got a call from

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Speaker 4: a client last Friday who had watched with concern as

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Speaker 4: Harvard's see this program was revoked their ability to enroll

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Speaker 4: international students. And I have a client that has a

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Speaker 4: similar sort of ratio. Harvard has about twenty seven percent

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Speaker 4: international students, and I represent an institution that has a

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Speaker 4: very significant number of international students. And you know, and

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Speaker 4: they reached out just last week, and that's one example,

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Speaker 4: and you know, their concern was what can we do

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Speaker 4: kind of proactively? And my advice to them was stay

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Speaker 4: out of the crosshairs. Honestly, you are not resourced as

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Speaker 4: Harvard is. You don't have that kind of a financial

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Speaker 4: depth to be able to withstand it. And you don't

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Speaker 4: want to tell your clients to fade into the background.

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Speaker 4: You know. I'm not attorney who normally would urge a client,

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Speaker 4: you know, to fade into the background. But in this instance,

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Speaker 4: the best thing that we can advise clients to do,

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Speaker 4: I think, is to say, what's your processes, what's what's

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Speaker 4: on your website, keep yourself out of focus, out of

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Speaker 4: the gaze of the administration. Because most of the institutions

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Speaker 4: that I represent could not withstand that kind of a

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Speaker 4: of a challenge, you know, that the mounting pressure of

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Speaker 4: you know, of a variety of attacks coming at them.

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Speaker 4: So yes, I have clients who had international students whose

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Speaker 4: student status was revoked. And that's that's the crazy part

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Speaker 4: of this is it's an ongoing battle where these things

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Speaker 4: go into effect and then you know, judicial resources are

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Speaker 4: exercised and then we have an injunction reversing it and

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Speaker 4: it gets stayed or you know, and what happens is

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Speaker 4: is that in the meantime there are things that happen.

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Speaker 4: So I had clients who had international students whose status

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Speaker 4: got revoked, and before the injunctions even came, you know,

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Speaker 4: stopping that and reversing it, before the administration reversed course

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Speaker 4: on that, several of these students had already left the

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Speaker 4: United States in April, you know, when their semester was

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Speaker 4: done in May. And it's such a shame, right, It's

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Speaker 4: really affecting institutions across the country who are watching the

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Speaker 4: fight that Harvard's engaged in.

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Speaker 2: So do you think there would be more sympathy from

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Speaker 2: the public if the attack wasn't on elite institutions of

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Speaker 2: higher learning?

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Speaker 4: Yeah, I think and I've kind of said this already,

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Speaker 4: but you know, I think that while Harvard might not

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Speaker 4: engender a lot of sympathy across the United states, or

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Speaker 4: or be a relatable institution in communities across this country.

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Speaker 4: There are colleges that are fulfilling these same purposes, right, educating,

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Speaker 4: becoming economic anchors of the communities, and they are impacted

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Speaker 4: by these things, very much impacted by these things. I

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Speaker 4: saw this morning. One of the latest things is, you know,

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Speaker 4: if they're going to take away the funding, they're going

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Speaker 4: to redirect it to trade schools. And that's fine. But

437
00:27:19,160 --> 00:27:21,720
Speaker 4: what you know, trade schools are fine. But what we

438
00:27:22,359 --> 00:27:25,000
Speaker 4: need to recognize is that this is a yes and right.

439
00:27:25,160 --> 00:27:29,440
Speaker 4: Private higher education is important. Public higher education is important.

440
00:27:29,440 --> 00:27:33,000
Speaker 4: Trade schools are important, but we shouldn't be held hostage

441
00:27:33,640 --> 00:27:37,480
Speaker 4: to an administration that wants institutions to bend to their

442
00:27:37,520 --> 00:27:42,200
Speaker 4: will or else. Right, if these actions are appropriate, then

443
00:27:42,760 --> 00:27:45,879
Speaker 4: then they would be appropriate. Not because you want to

444
00:27:45,960 --> 00:27:49,119
Speaker 4: hold an institution hostage or force it to bend to

445
00:27:49,240 --> 00:27:52,439
Speaker 4: your will. It shouldn't be tied like that. And so

446
00:27:53,040 --> 00:27:55,560
Speaker 4: what I guess, what I just always want to end

447
00:27:55,600 --> 00:27:59,400
Speaker 4: with whenever I'm doing an interview is just an urging

448
00:27:59,640 --> 00:28:03,320
Speaker 4: of folks to remember that as goes Harvard, or as

449
00:28:03,400 --> 00:28:07,720
Speaker 4: goes elite, IVY League or IVY plus institutions, still goes

450
00:28:08,240 --> 00:28:12,000
Speaker 4: thirty nine hundred other colleges and universities across the United

451
00:28:12,000 --> 00:28:16,320
Speaker 4: States who are and will continue to be impacted by

452
00:28:16,359 --> 00:28:20,040
Speaker 4: the very same actions that are happening in the upper

453
00:28:20,040 --> 00:28:24,000
Speaker 4: echelons of higher education. So it's far more important, I

454
00:28:24,040 --> 00:28:28,480
Speaker 4: think than maybe the average American citizens realizes, because the

455
00:28:28,480 --> 00:28:31,840
Speaker 4: implications are really staggering for what this could mean. The

456
00:28:31,880 --> 00:28:34,520
Speaker 4: other thing that I would would say is about the

457
00:28:34,560 --> 00:28:38,320
Speaker 4: international students. I want folks to realize that the world

458
00:28:38,520 --> 00:28:44,080
Speaker 4: is watching. The world is watching, and while the administration

459
00:28:44,200 --> 00:28:47,000
Speaker 4: may have recently indicated that they're not sure, we really

460
00:28:47,040 --> 00:28:49,960
Speaker 4: are receiving the best and brightest from the world. We

461
00:28:50,040 --> 00:28:53,600
Speaker 4: are and we have been. During the first Trump administration,

462
00:28:53,920 --> 00:28:58,280
Speaker 4: we saw a market downturn in international students coming here.

463
00:28:58,320 --> 00:29:02,640
Speaker 4: They many of them redirect to Canada or to Australia.

464
00:29:03,360 --> 00:29:07,920
Speaker 4: And I personally had students back then whose parents and

465
00:29:07,960 --> 00:29:11,200
Speaker 4: grandparents urged them not to come back to the United States.

466
00:29:11,320 --> 00:29:15,440
Speaker 4: So I worry that on the international student front, we

467
00:29:15,480 --> 00:29:19,320
Speaker 4: will feel the effects of these decisions for generations, no

468
00:29:19,320 --> 00:29:23,400
Speaker 4: matter how that all turns out. Now, we've already sent

469
00:29:23,480 --> 00:29:27,080
Speaker 4: a message right to the world that we're not sure,

470
00:29:27,120 --> 00:29:29,960
Speaker 4: We're real interested in having international students here, and we

471
00:29:30,000 --> 00:29:33,960
Speaker 4: don't recognize the contributions that they've made and continued to make,

472
00:29:34,720 --> 00:29:39,120
Speaker 4: not just to our economy, but really to science, to

473
00:29:40,080 --> 00:29:45,080
Speaker 4: our industries of all kinds across this country. And I

474
00:29:45,160 --> 00:29:47,640
Speaker 4: worry very much about the message that we've sent to

475
00:29:47,680 --> 00:29:48,560
Speaker 4: the rest of the world.

476
00:29:48,560 --> 00:29:52,680
Speaker 2: There have any of these investigations so far come up

477
00:29:52,720 --> 00:29:56,920
Speaker 2: with hard proof in numbers. Perhaps, I know, the EEOC

478
00:29:58,040 --> 00:30:03,680
Speaker 2: launched an investigation into Harvard's hiring and whether it unlawfully

479
00:30:03,800 --> 00:30:06,760
Speaker 2: hires faculty based on race and sex.

480
00:30:08,160 --> 00:30:12,560
Speaker 4: In the Commissioner's Charge about you know, where they indicated

481
00:30:12,640 --> 00:30:17,480
Speaker 4: that the EEOC was going to investigate because Harvard has

482
00:30:17,640 --> 00:30:24,480
Speaker 4: obviously been engaged in discriminatory hiring practices. So the Commissioner's

483
00:30:24,560 --> 00:30:28,120
Speaker 4: Charge shows all of this data right that Harvard had

484
00:30:28,160 --> 00:30:31,200
Speaker 4: put on a public dashboard and in its twenty twenty

485
00:30:31,200 --> 00:30:34,960
Speaker 4: four annual report, and Harvard's, like lots of institutions, like

486
00:30:35,040 --> 00:30:38,240
Speaker 4: my own clients in the past, have had, you know,

487
00:30:38,280 --> 00:30:42,160
Speaker 4: an annual report, and they show faculty demographics and development

488
00:30:42,200 --> 00:30:45,400
Speaker 4: and diversity and who you know got tenure and different things.

489
00:30:45,800 --> 00:30:49,000
Speaker 4: And so in Harvard's twenty four annual report, twenty twenty

490
00:30:49,000 --> 00:30:53,760
Speaker 4: four annual report. They showed the demographics, and in this

491
00:30:53,960 --> 00:30:58,360
Speaker 4: EEOC charge, it says, based on Harvard's twenty twenty four

492
00:30:58,440 --> 00:31:04,000
Speaker 4: Annual Report on Fact Development into Diversity, there is reason

493
00:31:04,080 --> 00:31:08,160
Speaker 4: to believe these trends show an underlying pattern or practice

494
00:31:08,160 --> 00:31:12,640
Speaker 4: of discrimination based on race. So what they're actually saying, right,

495
00:31:12,800 --> 00:31:15,360
Speaker 4: that is the leap it makes here is the data,

496
00:31:16,320 --> 00:31:19,719
Speaker 4: and based on that report, there is reason to believe

497
00:31:19,760 --> 00:31:22,800
Speaker 4: that Harvard has engaged in a practice of discrimination. But

498
00:31:22,880 --> 00:31:25,480
Speaker 4: what you're saying, if you just look at the data

499
00:31:25,520 --> 00:31:29,240
Speaker 4: and then you say, without more, there's reason to believe

500
00:31:29,320 --> 00:31:33,800
Speaker 4: that you've engaged in inappropriate hiring, is that you don't

501
00:31:33,800 --> 00:31:37,240
Speaker 4: believe there were that many minorities who were qualified to

502
00:31:37,320 --> 00:31:43,400
Speaker 4: work there, And that is discriminatory thinking, right. So it's

503
00:31:43,480 --> 00:31:48,479
Speaker 4: strange to me how that is someone considers that an

504
00:31:48,520 --> 00:31:52,880
Speaker 4: appropriate basis upon which to launch an EEOC investigation. Because

505
00:31:53,360 --> 00:31:57,040
Speaker 4: I did my doctoral research on this very thing, and

506
00:31:57,080 --> 00:31:59,479
Speaker 4: I can give you thirty seven other reasons why Harvard

507
00:31:59,520 --> 00:32:03,200
Speaker 4: may have, you know, an increase in diversity among their faculty,

508
00:32:03,440 --> 00:32:05,280
Speaker 4: and I can give you lots of reasons why it's

509
00:32:05,320 --> 00:32:08,000
Speaker 4: important to do so. But they've made the leap an

510
00:32:08,000 --> 00:32:12,320
Speaker 4: assumption that if you increase the rate of faculty diversity,

511
00:32:12,720 --> 00:32:19,360
Speaker 4: you've probably engaged into discrimination against white, straight folks men,

512
00:32:21,120 --> 00:32:23,920
Speaker 4: because otherwise you wouldn't have this data, you wouldn't have

513
00:32:23,960 --> 00:32:27,920
Speaker 4: this kind of diversity. But that that itself is discriminatory,

514
00:32:28,000 --> 00:32:31,440
Speaker 4: and so that that is just a point that I'd

515
00:32:31,440 --> 00:32:34,840
Speaker 4: really like to make, is that that particular EEOC investigation

516
00:32:34,920 --> 00:32:38,680
Speaker 4: to me, seems like it's very logic. It's based on

517
00:32:38,720 --> 00:32:40,800
Speaker 4: discriminatory logic in the first place.

518
00:32:41,440 --> 00:32:43,959
Speaker 2: We'll have to follow this and see if anything comes

519
00:32:44,000 --> 00:32:48,800
Speaker 2: of this EEOC investigation. Thanks so much, Jody. That's Jody

520
00:32:48,880 --> 00:32:53,000
Speaker 2: Feris of Church, Church, Hittle and Antrum. And that's it

521
00:32:53,040 --> 00:32:55,640
Speaker 2: for this edition of The Bloomberg Law Show. Remember you

522
00:32:55,640 --> 00:32:58,120
Speaker 2: can always get the latest legal news on our Bloomberg

523
00:32:58,200 --> 00:33:01,840
Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,

524
00:33:02,000 --> 00:33:07,040
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,

525
00:33:07,440 --> 00:33:10,040
Speaker 2: and remember to tune into The Bloomberg Law Show every

526
00:33:10,080 --> 00:33:14,000
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

527
00:33:14,120 --> 00:33:15,720
Speaker 2: and you're listening to Bloomberg