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

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Speaker 1: It's been more than forty years since the Supreme Court

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Speaker 1: first considered affirmative action, and now it's new conservative majority

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Speaker 1: is signaling it's ready to eliminate the consideration of race

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Speaker 1: and college admissions. In oral arguments on challenges to affirmative

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Speaker 1: action programs at the University of North Carolina and Harvard College,

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Speaker 1: several conservative justices suggested it had run its courts, referring

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Speaker 1: to the two thousand three Grutter decision, in which Justice

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Speaker 1: Sandra Day O'Connor anticipated the use of racial preferences would

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Speaker 1: no longer be necessary in twenty five years. Here are

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Speaker 1: Chief Justice John Roberts and Justice Amy Coney Barrett. You

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Speaker 1: don't think that University of North Carolina has to stop

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Speaker 1: in twenty five years and at the mark, So what

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Speaker 1: are you saying when you're up here in are you

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Speaker 1: still the fending it like this is just indefinite, It's

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Speaker 1: going to keep going on. I don't see how you

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Speaker 1: can say that the program will ever end. Your position

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Speaker 1: is that race matters because it's necessary for diversity, which

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Speaker 1: is necessary for the sort of education you want. It's

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Speaker 1: not going to stop mattering at some particular point. My

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Speaker 1: guest is former United States Solicitor General Gregory gar a

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Speaker 1: partner at Latham and Watkins. He won the landmark case

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Speaker 1: of Fisher versus the University of Texas, which upheld the

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Speaker 1: race conscious admissions program used by that university. Gregg looking

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Speaker 1: at the legal analysis after the arguments, it seems that

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Speaker 1: the almost universal conclusion was that the Court is ready

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Speaker 1: to throw out the consideration of race in college admissions.

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Speaker 1: Did you come to that conclusion as well? I did?

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Speaker 1: I mean, I think, certainly, based on the oral arguments,

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Speaker 1: appear as though the challengers had the upper hand, and

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Speaker 1: you know, that's not surprising going in. But having said that,

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Speaker 1: there's a lot that means to be seen about how

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Speaker 1: the Court gets that result and how broadly it might

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Speaker 1: go in these cases. During the arguments there seemed to

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Speaker 1: be a great focus on whether educational diversity can be

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Speaker 1: achieved without the consideration of race, specifically with race neutral approaches.

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Speaker 1: Does that indicate the justices are onto the next step?

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Speaker 1: I think that it means that they're focused very carefully

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Speaker 1: on the application of strict scrutiny in this context. In particular,

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Speaker 1: looking for narrow tailoring and the existence of race neutral alternatives.

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Speaker 1: You know, for some conservative justices, it may also mean

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Speaker 1: simply illustrating that universities can achieve educational diversity in other

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Speaker 1: ways without explicitly considering race as part of the emissions process.

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Speaker 1: So I think, you know, different justices we're looking at

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Speaker 1: that issue through different lenses. It seemed like the justices

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Speaker 1: were deeply divided down ideological lines. Well, generally speaking, there's

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Speaker 1: a start to side in the court in terms of

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Speaker 1: how the justices look at this question of diversity and

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Speaker 1: the interests in achieving diversity on college campuses and otherwise.

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Speaker 1: And I think you saw that by the questioning that

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Speaker 1: the justices had for the advocates. The more liberal justices

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Speaker 1: obviously came at this issue from the perspective of there

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Speaker 1: being a compelling interest in achieving diversity on college campuses

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Speaker 1: and elsewhere. And you know, whether or not they were

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Speaker 1: able to persuade their more conservative colleagues, I'm not sure,

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Speaker 1: but certainly that was one of the more interesting interplace

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Speaker 1: going on throughout the oral arguments and reflects this sort

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Speaker 1: of stark divide that the justices have on this issue.

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Speaker 1: You argue the Fisher case, of course, and the three

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Speaker 1: justices who dissented, the Chief Justice and Justices Thomas and

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Speaker 1: Alito are still on the court where they as stark

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Speaker 1: in their questions and comments about using race to achieve diversity. Yes,

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Speaker 1: thinking from the standpoint of the more conservative justices, their

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Speaker 1: position on this issue has been clear for some time,

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Speaker 1: and I think that's true of Justice Thomas, although za

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Speaker 1: recall he did not ask questions during the Fisher argument.

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Speaker 1: But but certainly Justice Leo, and even the Chief Justice,

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Speaker 1: who is more moderate in a number of areas, but

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Speaker 1: in this area, has been very outspoken against the consideration

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Speaker 1: of race and admissions. In this case, Justice Neil Gorsage

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Speaker 1: seemed to have a concern that, you know, using race

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Speaker 1: is sort of it's like a quota, a racial quota.

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Speaker 1: Was that also a point in the Fisher arguments. So

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Speaker 1: that was settled by Baki that the schools could not

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Speaker 1: set actual quotas for admission spots based on race. But

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Speaker 1: I think some of the justices had concerns that even

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Speaker 1: the more holistic consideration of race, as in the Harvard

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Speaker 1: or UNC policies, could operate as a quota. And you know,

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Speaker 1: to the extent that the justices had those concerns, that's

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Speaker 1: that's a very problematic fact for the schools. There was

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Speaker 1: a considerable amount of questioning about whether minority students could

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Speaker 1: write in their essays about their experiences with race discrimination,

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Speaker 1: and some of the conservative justices seemed to indicate that

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Speaker 1: they could. Yeah, I think that was a very interesting

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Speaker 1: and potentially quite important aspect of the oral argument. There

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Speaker 1: seemed to be a majority of justices who were aligned

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Speaker 1: against the use of race and a sort of checked

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Speaker 1: the box form as part of the admissions process. But

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Speaker 1: but even those justices, or at least several of them,

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Speaker 1: seemed to indicate that an applicant could identify and speak

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Speaker 1: about his or a race in the context an essay

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Speaker 1: that explained how the person's race affected their own experiences,

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Speaker 1: perhaps led to greater or greater perseverance that would be

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Speaker 1: relevant to considering who that person was. And they seemed

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Speaker 1: to indicate that that would be okay. If that were

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Speaker 1: the ultimate upshot of the court's opinion in the case,

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Speaker 1: then at least in that sense, schools could consider applicants

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Speaker 1: race as they wrote about it in the context of

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Speaker 1: a personal essay. The challengers here had argued that any

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Speaker 1: consideration of race in college admissions is unlawful. During the

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Speaker 1: oral arguments, their attorney at one point said that writing

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Speaker 1: about in an essay would be okay because that's cultural

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Speaker 1: rather than racial, and justice Elena Kagan said, that's slicing

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Speaker 1: the bologna a little thin, something along those lines. So

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Speaker 1: do you think that the challenges were giving in on

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Speaker 1: that point. They seemed to go back and forth a

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Speaker 1: bit on the question of whether or not race could

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Speaker 1: be considered in the context of a personal essay. Towards

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Speaker 1: the second argument, I think they seem to be willing

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Speaker 1: to acknowledge that it might be appropriate in the context

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Speaker 1: of an essay, at least depending on how it was

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Speaker 1: used in describing the person's experiences and what he or

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Speaker 1: she might bring to a college campus. But I do

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Speaker 1: think that that was one of the more interesting and

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Speaker 1: important exchanges throughout your argument. Certainly that's something that the

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Speaker 1: Chief Justice seemed to be interested in, kneeling down that

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Speaker 1: the school might be able to consider an applicant's race

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Speaker 1: in the context of a personal essay. Might that be

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Speaker 1: sort of a middle ground for a decision here? It

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Speaker 1: certainly could be a middle ground, and it could leave

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Speaker 1: schools with an important tool for attempting to achieve educational

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Speaker 1: diversity in the makeup of their student bodies, even if

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Speaker 1: the Core deems the consideration of a check the box

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Speaker 1: use of race unconstitutional. Another area of questioning was when

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Speaker 1: will affirmative action run its course? And some of the

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Speaker 1: conservatives really pressed on that point. The Chief Justice asked

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Speaker 1: the Solicitor of General Grutter, gave us a number, Do

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Speaker 1: you want to give a number? No number was given,

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Speaker 1: No number. I think that was one of the more

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Speaker 1: difficult parts of the argument for those defending the schools,

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Speaker 1: including the government. And you know, the conservative justices seemed

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Speaker 1: to expose a concern that if they were to adopt

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Speaker 1: the positions of schools, they'd effectively be signing onto the

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Speaker 1: indefinite use of race and even in a holistic fashion,

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Speaker 1: and student admissions, which they seemed uncomfortable with. This is

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Speaker 1: the first time in history that a black female justice

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Speaker 1: heard arguments on affirmative action. What stood out to you,

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Speaker 1: if anything, about Justice Jackson's questions. She's obviously been extremely

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Speaker 1: active at oral arguments, and you know, she elfishly brings

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Speaker 1: her own experience more generally to this issue as in

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Speaker 1: other areas, and so I think her questions were very

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Speaker 1: poignant and important exchanges during the course of this lengthy

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Speaker 1: oral argument, and she brought up the point with regard

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Speaker 1: to writing about race on your application form, that it

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Speaker 1: would be odd if admissions officers could consider factors like

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Speaker 1: whether applicants parents went to the school, whether their veterans

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Speaker 1: or to save, but not that they're members of racial minorities.

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Speaker 1: And she said that has the potential of causing more

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Speaker 1: of an equal protection problem than it's actually solving. I think,

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Speaker 1: as the Chief Justice pointed out later in the oral argument,

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Speaker 1: the reason why the focuses on races because race has

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Speaker 1: a special role in the history of the country and

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Speaker 1: the Constitution itself. But certainly from the perspective of the

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Speaker 1: more progressive justices, I think, you know, one of the

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Speaker 1: points that they made throughout was that, you know, race

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Speaker 1: was simply being considered as part of many, many other

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Speaker 1: factors about an individual applicants profile, and so in that

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Speaker 1: respect wasn't really doing any different work than other factors.

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Speaker 1: But again I'm not sure that persuaded their more conservative colleagues.

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Speaker 1: Do you have an idea for how you think this

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Speaker 1: decision will work out. Do you think it will be

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Speaker 1: one of those decisions where there are a lot of

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Speaker 1: concurring opinions and you know, dissents. I think there's a

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Speaker 1: lot of work left to be done on the court

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Speaker 1: in terms of coming to a result in this case.

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Speaker 1: And you know, do you have any thoughts about how

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Speaker 1: this decision might turn out. I think there's a lot

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Speaker 1: of work left to be done on the court in

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Speaker 1: terms of coming to a result in this case. And

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Speaker 1: you know, one of the more interesting aspects of the

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Speaker 1: oral argument was there wasn't a lot of discussion of

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Speaker 1: overruling prior precedent, which is something that is certainly a

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Speaker 1: possibility on the table here. But even if the justices

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Speaker 1: reached the conclusion that the particular plans here are unconstitutional,

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Speaker 1: it remains to be seeing what they'll do with their

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Speaker 1: prior cases and what they might say about the use

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Speaker 1: of race in different ways in order to achieve diversity

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Speaker 1: among student bodies, and justices were coming at that from

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Speaker 1: different perspectives on the court. I mean, certainly Justice Kavano's

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Speaker 1: questions about the possibility of race neutral alternatives were important,

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Speaker 1: and so even if it looks like an uphill battle

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Speaker 1: for the defender of the plans here. I think there's

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Speaker 1: a lot that will have to wait for in terms

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Speaker 1: of what this decision actually says. If the Court does

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Speaker 1: away with affirmative action by the end of this current term,

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Speaker 1: it would be the second time in the space of

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Speaker 1: a year that the conservative super majority jettison decades of precedent.

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Speaker 1: Will that be a consideration for the Conservatives and perhaps

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Speaker 1: particularly for the Chief Well, certainly, any time the Court

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Speaker 1: considers overruling precedent, it's a momentous decision for the Court,

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Speaker 1: and the justices are well aware of that. I mean,

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Speaker 1: this is an area where justice is even the Chief

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Speaker 1: Justice have been openly critical that's prior precedent, So if

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Speaker 1: it reached that conclusion, it wouldn't be out of the blue.

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Speaker 1: But I think it's fair to say that, you know,

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Speaker 1: all the justices are aware of the implications of over

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Speaker 1: ruling precedent, and I do think that there are a

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Speaker 1: number of options that may be available to the Court

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Speaker 1: in the short of overruling all its precedents in this area.

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Speaker 1: Well know. By June, thanks so much, Greg, that's former

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Speaker 1: US Solicitor General Gregory gar. I've heard word diversity quite

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Speaker 1: a few times, and I don't have a clue what

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Speaker 1: it means. That was Justice Clarence Thomas, who's dissented in

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Speaker 1: landmark affirmative action cases. In oral arguments this week over

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Speaker 1: the affirmative action programs at Harvard College in the University

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Speaker 1: of North Carolina. Thomas was just one of the justice

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Speaker 1: is who questioned the role that diversity plays in a

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Speaker 1: college education. My guest is paul at Grandberry Russell, president

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Speaker 1: of the National Association of Diversity Officers in Higher Education,

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Speaker 1: explain why diversity is important in colleges and universities. Diversity

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Speaker 1: has previously been defined by the Court as a compelling interest,

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Speaker 1: meaning there are benefits that can be derived by having

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Speaker 1: a diverse campus community. Those of us who are practitioners

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Speaker 1: who lead and influenced the effort of colleges and universities

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Speaker 1: and advancing to the understand the value of a heterogeneous

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Speaker 1: campus community, meaning diversity of thought, diversity of perspectives that

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Speaker 1: are offered in and outside the classroom. That diversity, particularly

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Speaker 1: if you think about it in the context of race

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Speaker 1: and ethnicity, can facilitate breaking down stereotypes. It can also

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Speaker 1: provide individuals an opportunity to engage in what higher ed

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Speaker 1: has advocated, the robust exchange of ideas, which is the

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Speaker 1: basis upon which the higher education exists. Uh for, you know,

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Speaker 1: holistic admissions and race as a factor. How do they

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Speaker 1: in general use race as a factor. There's no checkbox,

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Speaker 1: there's no quota. Clearly those have been banned by earlier

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Speaker 1: presidents of the court. Race and this was enunciated by

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Speaker 1: Justice pal in nineteen seventy eight in the Bockey case

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Speaker 1: that in his view, race is only one and I'm

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Speaker 1: quoting element and arrange factors a university properly may consider

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Speaker 1: in attaining the goal of a heterogeneous student body. So

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Speaker 1: there's no hard and fast formula for using race as

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Speaker 1: one of many factors that you would considered. But it's

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Speaker 1: not ignoring the role that race has played in influencing

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Speaker 1: potentially the experiences of individuals. So if a student who's

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Speaker 1: interested in admission chooses to speak to any aspects of

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Speaker 1: their life, including race, that has provided them with perspectives

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Speaker 1: or impacted their experiences, that the admissions as a part

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Speaker 1: of their process may take that into consideration. The justices

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Speaker 1: were exploring the use of race neutral policies in admission,

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Speaker 1: you know, considering socioeconomic status or admitting the top performers

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Speaker 1: at high schools. Is that another way of doing this.

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Speaker 1: I'll offer this perspective here as the president of the

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Speaker 1: National Association a Diversity Officers and Higher Education, we do

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Speaker 1: not believe that there's any real replacement for race conscious admissions,

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Speaker 1: meaning what is often referred to as race neutral approaches. Now,

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Speaker 1: the courts has previously addressed it and that the process

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Speaker 1: that you used to consider race must stand under the

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Speaker 1: closest scrutiny by the court. But you know, race neutral

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Speaker 1: approaches as the evidence in these cases, both Harvard and

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Speaker 1: Uncy have demonstrated that they are not successful and necessarily

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Speaker 1: achieving the goals of racially ethnically diversed campus communities. They

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Speaker 1: are helpful, absolutely, but the goal is to enhance the

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Speaker 1: opportunities for students to engage across culture, across perspective, across

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Speaker 1: background and experience, to learn from each other, to understand

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Speaker 1: that no one perspective is the final perspective. It can

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Speaker 1: be persuasive, and that includes perspective based on one's experiences.

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Speaker 1: Because of the way that race influences experiences in this country.

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Speaker 1: So to use race neutrals to say, you know, will

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Speaker 1: consider socio economic class that, as argue and in evidence,

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Speaker 1: is not successful in achieving the goals of institutions. It

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Speaker 1: adds to it, but it doesn't necessarily provide the composition

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Speaker 1: a racially ethnically composed class that would achieve the goals

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Speaker 1: of those institutions. The Justice has asked a lot of

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Speaker 1: questions about what the end date for affirmative action programs is.

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Speaker 1: And we're fast approaching the date that in Grutter, Justice

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Speaker 1: Santa Dale O'Connor said affirmative action would no longer be needed.

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Speaker 1: So what's the end date? The Justice has asked a

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Speaker 1: few of the lawyers that and there was no answer

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Speaker 1: to that question. Well, I do think that the lawyer

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Speaker 1: for the s s A did respond to that, and

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Speaker 1: his point was that and and acknowledged himself that year,

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Speaker 1: that twenty five year expectations identified in the earlier case

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Speaker 1: that that number and I'm quoting from him because I

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Speaker 1: listened to the your arguments that number is aspirational. Okay,

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Speaker 1: So there's no hard and fast rule that one can

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Speaker 1: point to in Brooder that clearly specified that in twenty

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Speaker 1: five years, it must end. You know this, this notion

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Speaker 1: that's using rates as one of many factors in a

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Speaker 1: quite frankly in in a country where we have worked

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Speaker 1: particularly hard to address becoming a more diverse country, recognizing

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Speaker 1: and respecting the role that race has played in this country,

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Speaker 1: acknowledging the disadvantages that still persists as a country that

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Speaker 1: has as a part of its history bree enslavement of

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Speaker 1: black people. That to the extent that we are thinking

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Speaker 1: aspirationally to move beyond that history, perhaps in twenty five

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Speaker 1: years we want to anticipate or expect in twenty five

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Speaker 1: years we no longer have to do this. I think

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Speaker 1: it is expected that the consideration of race and admissions

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Speaker 1: is time limited. The question is I'll be there yet,

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Speaker 1: And based on the evidence presented by U n C

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Speaker 1: and Harvard, we are not there yet. Will you explain

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Speaker 1: why you know? So many companies submitted briefs warning that

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Speaker 1: without affirmative action they'll lose access to this pipeline of

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Speaker 1: future workers. I think in the in the absence of

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Speaker 1: UM diversity and the consideration of race carefully construct rupted

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Speaker 1: consideration of rape UM we I think the concern of

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Speaker 1: corporations is that their efforts to UM speak to the

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Speaker 1: innovations that are well documented that results from having a

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Speaker 1: diverse UH employee base, which includes racially diverse which could

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Speaker 1: include of course gender UM and disabilities, UM, sexual orientation,

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Speaker 1: gender identity, a whole range of ways that those experiences

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Speaker 1: can influence. It doesn't mean that UM this notion of

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Speaker 1: race in and of itself represents a particular point of view,

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Speaker 1: but it represents a varied amount of perspectives, and those

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Speaker 1: perspectives influence how people engage with each other. It forces

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Speaker 1: people from time to time in those spaces where you're

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Speaker 1: fading how you're going to approach UH circumstances, whether that

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Speaker 1: is promoting sales, whether that is UH influencing UM media,

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Speaker 1: whether that is UM enhancing opportunities in a broader community.

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Speaker 1: That those perspectives, particularly in this context of racial perspectives

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Speaker 1: or not racial perspectives, but perspectives that can be influenced

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Speaker 1: by one's races and experiences needs a place at the

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Speaker 1: table as well. If we take a look at the

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Speaker 1: impact of a pandemic and acknowledging that UH, there were

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Speaker 1: certain communities, black and brown communities particularly who were disproportionately

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Speaker 1: impacted by race and health outcomes associated with their race.

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Speaker 1: That signals that race still matters in this country. Now.

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Speaker 1: It's not saying that only black and brown cops have

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Speaker 1: influenced the science around medicine, but those perspectives have a

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Speaker 1: place at the table. You know, it extends thinking about

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Speaker 1: communities that may not otherwise be present in those conversations. UM.

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Speaker 1: It breaks down stereal type UM and and so what

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Speaker 1: corporations and the military, particularly if you if you look

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Speaker 1: at the military brief, the goal was, you know, what's

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Speaker 1: the composition of the military at some rank. Black and

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Speaker 1: brown cops are very well represented in those ranks, but

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Speaker 1: they're not necessarily represented in officer ranks. And sometimes the

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Speaker 1: l you're to have a more racially diverse leadership, Jim

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Speaker 1: be to the detriment of perspectives that might otherwise be

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Speaker 1: brought to bear in the experiences of those at the

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Speaker 1: other ranks. So it's it's the goal of enhancing both

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Speaker 1: opportunities but also experiences and the way that those experiences

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Speaker 1: can influence decision making. Thanks for being on the show.

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Speaker 1: That's Paul at Grandberry Russell, President of the National Association

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Speaker 1: of diversity officers in higher education. And that's it for

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Speaker 1: this edition of The Bloomberg Law Show. Remember you can

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Speaker 1: always get the latest legal news honor Bloomberg Law Podcast.

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Speaker 1: You can find them on Apple Podcasts, Spotify, and at

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Speaker 1: remember to tune into The Bloomberg Law Show every week

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Speaker 1: night at ten d m. Wall Street Time. I'm June

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Speaker 1: Grossow and your listening to Bloomberg mhm