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Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: Does a high school football coach have the constitutional right

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Speaker 1: to say a prayer of thanks on the fifty yard

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Speaker 1: line right after a game. That's the question facing the

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Speaker 1: Ninth Circuit Court of Appeals, and a panel of judges

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Speaker 1: seemed skeptical that coach Joe Kennedy was truly engaged in

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Speaker 1: a personal, private religious observance after games at Bremerton High

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Speaker 1: School in Washington State. Here are Judges Morgan Kristen and

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Speaker 1: Milan Smith Jr. It's pretty clear he continued to pray

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Speaker 1: October with other people with students, and we have the

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Speaker 1: photos showing them all huddled around him, um with with

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Speaker 1: media October six October, and again on October. So it's

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Speaker 1: just strained to see this being a brief, personal, a

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Speaker 1: private prayer. Let's be truthful about this. The coach. The

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Speaker 1: coach didn't have a mall of silent prayer. He engaged

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Speaker 1: in prayer, a Christian prayer in sight of a lot

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Speaker 1: of people that he had told that was exactly what

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Speaker 1: he was going to do. Isn't that the truth? It's

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Speaker 1: a case that's already attracted the attention of four Supreme

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Speaker 1: Court justices joining me as Caroline Mala Corbin, a professor

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Speaker 1: at the University of Miami Law School. So Caroline explained

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Speaker 1: the main issue that the Ninth Circuit is dealing with. So,

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Speaker 1: under the current doctrine, if you are a public teacher

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Speaker 1: and your speech is pursuant to your official duties, that is,

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Speaker 1: if your speech is part of your job or owes

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Speaker 1: its existence to your job, then it's actually considered the

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Speaker 1: government speech that the government paid for, and it's not

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Speaker 1: protected by the free speech clause. So the pivotal question

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Speaker 1: is which hat is the teacher wearing when he or

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Speaker 1: she speaks. Is he speaking pursue into official duties, in

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Speaker 1: which case he's wearing the government employee hat and the

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Speaker 1: speech is not protected, or is he speaking of a

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Speaker 1: private citizens, in which case the speech may be protected.

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Speaker 1: At least the school would be put in the position

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Speaker 1: of having to offer a strong justification for forbidding him

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Speaker 1: to speak. And I think because this does not fall

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Speaker 1: clearly into speech of a private citizen or the speech

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Speaker 1: of the teacher in front of the classroom, that is

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Speaker 1: what they're struggling with. How do you characterize praying on

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Speaker 1: a football field after a game by a coach. Was

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Speaker 1: he speaking as a coach who has certain responsibilities and

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Speaker 1: is the representative of the school, or is he speaking

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Speaker 1: as a private citizen. So, Caroline, this case was before

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Speaker 1: the Ninth Circuit before the first time around. The Ninth

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Speaker 1: Circuit seemed quite comfort do bole in labeling it as

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Speaker 1: speech pursuant to his official duties, because he was a

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Speaker 1: football coach, and it was a football game on the

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Speaker 1: football field in front of his team and along with

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Speaker 1: his team, and so those factors seemed to support the

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Speaker 1: arguments that he was speaking in his official duties. I mean,

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Speaker 1: he wouldn't even have had access to the football field

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Speaker 1: had he not been there as the school's coach. At

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Speaker 1: the oral arguments, Judge Kristen said that the school had

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Speaker 1: offered the coach an accommodation. My understanding is that the

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Speaker 1: choice he gave the district was that the only accommodation

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Speaker 1: that was going to be acceptable was on the field

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Speaker 1: under the lights while the friends were still there. Again,

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Speaker 1: based on the original Ninth Circuit decision, they pointed out

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Speaker 1: that the school actually offered him the opportunity to have

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Speaker 1: a private prayer by provide getting a private place on

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Speaker 1: the school grounds before and act of the game where

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Speaker 1: he could pray, or if you really wanted to pray

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Speaker 1: on the field, they said, well, after everyone has left

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Speaker 1: and you know the game is officially odor, you could

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Speaker 1: go onto the field, and so I think that would

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Speaker 1: be a different situations than while everyone is still there

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Speaker 1: and with everyone meeting prayers on the field. Explain the

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Speaker 1: school's concern that if they allowed him to continue to

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Speaker 1: pray in the middle of the field, surrounded by students,

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Speaker 1: that the school might be accused of violating the prohibition

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Speaker 1: against the State establishment of religion, And they would be

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Speaker 1: very right to be concerned that they might be deemed

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Speaker 1: to violate the Establishment clause, which is the clause in

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Speaker 1: the Constitution that requires separation of church and state. And

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Speaker 1: the Supreme Court has been very concerned about prayers in

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Speaker 1: the school context because there's a reason why the government

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Speaker 1: is not supposed to favor or endorse one religion over

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Speaker 1: other religions, because it will have a very detrimental effect

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Speaker 1: on those who don't belong to that religion. If the

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Speaker 1: school is seen as promoting Christian prayers, it may be

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Speaker 1: viewed as potentially coercing students to participate in a prayer

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Speaker 1: that they would rather not, which is an infringement on

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Speaker 1: their own religious liberty, and it also compromises their equality.

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Speaker 1: If the school is putting its stamp of approval on

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Speaker 1: a message that Christians are preferred, are favored, it makes

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Speaker 1: non Christians second class citizens in the school community. Now,

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Speaker 1: the Supreme Court declined to hear Kennedy's case last year

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Speaker 1: on appeal of a preliminary injunction, but Justice Samuel Alito

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Speaker 1: wrote a statement indicating concern and a suggest Jim that

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Speaker 1: teachers can be ordered not to engage in demonstrative prayer

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Speaker 1: that's visible to students, and he was joined by Justices

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Speaker 1: Clarence Thomas, Brett Kavanaugh, and Neil Gorst. What do you

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Speaker 1: think that signifies? Again, as I said, the crucial question

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Speaker 1: here is how do we characterize this prayer on the field.

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Speaker 1: And in characterizing it as speech of a school employee

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Speaker 1: pursuant to their official duties, the Ninth Circuit came up

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Speaker 1: with a rather broad view of what that includes, and

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Speaker 1: the Supreme Court said it was a little worried about

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Speaker 1: how broad the Ninth Circuits view was and they were worried,

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Speaker 1: and I think rightly so that too broad of an

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Speaker 1: understanding of when someone is speaking as a public employee

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Speaker 1: might really strip free speech protections away from government employees.

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Speaker 1: You shouldn't lose all your free speech rights the moment

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Speaker 1: you enter the school and start teaching. Now, their concerns

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Speaker 1: seems mostly sent from the fact that it was religious

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Speaker 1: speech that was at stake. So assuming that the Ninth

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Speaker 1: Circuit again characterizes this as government speech not within the

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Speaker 1: coaches free speech rights, does it seemed likely that the

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Speaker 1: Supreme Court will take the case at that point? And

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Speaker 1: it is fair to say that this court is particularly

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Speaker 1: receptive to religious claim particularly claims of religious discrimination. Now,

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Speaker 1: they can surely Resolvecate without reaching that issue, but it

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Speaker 1: is definitely something that they care about, and therefore it

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Speaker 1: may be that they would like to take it up.

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Speaker 1: Thanks Caroline. That's Caroline Mala Corbin of the University of

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Speaker 1: Miami Law School. Dale no longer has the Trump administration

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Speaker 1: on its case over how to deal with race and

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Speaker 1: admissions and campus life. President Joe Biden's Justice Department dropped

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Speaker 1: a Trump administration lawsuit accusing Yale University of discriminating against

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Speaker 1: whites and Asian Americans while favoring black and Hispanic applicants

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Speaker 1: for admission. Joining me is Audrey Anderson, who had the

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Speaker 1: higher education practice at Bassbarian SIMS before Biden took office.

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Speaker 1: Remind us where Yale was with the Trump administration what

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Speaker 1: was happening. Well, last of all, the Trump administration filed

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Speaker 1: a lawsuit against Yale University alleging that Yales admissions practices

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Speaker 1: violated federal law UM that is titled six which UM

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Speaker 1: prevents UM discrimination on the basis of the way. So

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Speaker 1: the government had had an investigation going on against Yale

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Speaker 1: for a couple of years and then rather precipitously um

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Speaker 1: ended that investigation by filing a lawsuit against Yale last fall. So, UM,

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Speaker 1: at the point in time when we were about to

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Speaker 1: change administrations, there was kind of the preliminary legal filings

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Speaker 1: going on in that losses. So now what happened that

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Speaker 1: Biden administration just decided to drop the whole thing. Well,

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Speaker 1: the find administration has decided to voluntarily withdraw the lawsuits,

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Speaker 1: so the lawsuit will not go forward. However, there is

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Speaker 1: still an open investigation being carried out by the federal government.

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Speaker 1: So the investigation that started in tighten against Yale's admissions

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Speaker 1: practices will continue. The press accounts last fall when Yale

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Speaker 1: was sued, they said that they had not even finished

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Speaker 1: um giving the government all of the information the government

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Speaker 1: had asked for in that investigation. So Yale will continue

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Speaker 1: to provide the government with information in that investigation, and

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Speaker 1: that investigation will continue in an administrative form rather than

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Speaker 1: in the courts. What does it tell you that in

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Speaker 1: about two weeks the Biden administration decided to withdraw the lawsuit. Well,

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Speaker 1: what it tells me is is no surprise to anyone,

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Speaker 1: is that the Biden administration, and it's just the Department,

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Speaker 1: agrees with the current case law from the Supreme Court

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Speaker 1: that says that race conscious student admissions programs are legal

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Speaker 1: as long as they're done in a narrowly tailored way.

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Speaker 1: And um, you know, if you and I have discussed

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Speaker 1: before June, the uh Trump administration probably didn't really believe that,

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Speaker 1: and their goal was probably more in line with what

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Speaker 1: the goal of students for fair Admissions eventually is, which

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Speaker 1: is to overrule that law and find that colleges and

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Speaker 1: universities are not allowed under the Constitution to considerate at

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Speaker 1: all in their student admissions program. What happens now is

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Speaker 1: the suit dropped or does someone else pick it up? No,

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Speaker 1: this suit is now gone. The federal roles of civil procedure,

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Speaker 1: which applied to cases Island federal court um allow the

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Speaker 1: party bringing a lawsuit to dismiss it voluntarily up to

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Speaker 1: a certain point in the litigation. And the suit was

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Speaker 1: still at that point where the party bringing the suit

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Speaker 1: here the federal government could voluntarily dismiss it saying love

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Speaker 1: her mind, we're not going forward with it. The case

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Speaker 1: is gone. So this case is now gone. Now what

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Speaker 1: everybody expects to happen, and Edward Blum, who's the president

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Speaker 1: of Studs for Your Admissions yesterday said to the press

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Speaker 1: would happen is that everyone expect that Students for their

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Speaker 1: Admissions will file its own lawsuits against the Alps. They

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Speaker 1: had tried to intervene in this lawsuit brought by the government.

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Speaker 1: They filed a motion to intervene, probably because they were

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Speaker 1: fearing exactly what happened Um, that the Biden administration, if

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Speaker 1: they won the election, would dismiss the lawsuits they had

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Speaker 1: asked to intervene. As a plaintiff to say, hey, we

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Speaker 1: want to be part of this lawsuit too. We've been

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Speaker 1: harmed by Yale practices. Let us be part of this lawsuit.

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Speaker 1: The court denied that request that now we're not going

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Speaker 1: to let you be part of this lawsuit. The government

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Speaker 1: can adequately represent your interests. So they were not allowed

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Speaker 1: to intervene in the lawsuits. However, there's nothing that stops

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Speaker 1: them from filing their own lawsuits against the ail and

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Speaker 1: going forward with that. And they have this complaint that

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Speaker 1: was filed by the Department of Justice, which gives them

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Speaker 1: a very good template for what a complaint against the

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Speaker 1: al might look like. So now let's look at some

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Speaker 1: of the other universities who have been sued by students

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Speaker 1: for fair admission. A federal appeals court Emboston ruled in

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Speaker 1: November that Harvard's race conscious admissions policies were not discriminatory.

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Speaker 1: Is that being appealed to the Supreme Court? Well, everyone

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Speaker 1: expects that, um the point of who lost, students prepared

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Speaker 1: admissions lost in the Court of Appeals in the first

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Speaker 1: circuit and Harvard, so everyone expects that they will file

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Speaker 1: a petition for circu ari, which is how you ask

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Speaker 1: the Supreme Court to review your case. That petition is

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Speaker 1: due in mid mid April, so the Court will um decide,

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Speaker 1: probably um by the end of June whether or not

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Speaker 1: it will agree to review that. Harvard decision tell us

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Speaker 1: what the strategy of Students for Fair Admissions is with

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Speaker 1: its lawsuits across the country. Yes, Students for Fair Admissions

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Speaker 1: when they bring cases challenging student missions plans that have

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Speaker 1: a race as a factor in admissions and say that

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Speaker 1: those plans discriminate on the basis of race. Um. Their

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Speaker 1: plaint is lately have been all Asian Americans students, So

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Speaker 1: they say that when colleges consider race and admissions, it

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Speaker 1: ends up discriminated against Asians based on race. That's what

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Speaker 1: their complaints say. They always in all of their cases.

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Speaker 1: They have also included claim that any consideration of race

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Speaker 1: violates the Constitution, even though that argument is foreclosed by

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Speaker 1: current law. The current Supreme Court law says that colleges

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Speaker 1: may consider race in admissions if they show they have

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Speaker 1: a compelling interest in considering race and their use of

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Speaker 1: race is narrowly tailored. But students prepare admissions always make

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Speaker 1: an argument that hey, we think that's wrong. We think

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Speaker 1: the Supreme Court. Current case law is wrong, and if

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Speaker 1: we ever get a chance to argue this before the

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Speaker 1: Supreme Court, we're going to tell the Supreme Court that

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Speaker 1: we think that's wrong and they should overturn that law.

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Speaker 1: So it Students for Fair Admissions is really doing by

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Speaker 1: filing cases all across the country. They are trying to

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Speaker 1: improve their chances at the Supreme Court will at some

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Speaker 1: point decide to review one of these lower court decisions

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Speaker 1: and eventually rule UM in Student Prepared Admissions favor on

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Speaker 1: that arguments that the Constitution does not allow the consideration

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Speaker 1: of race in higher education admissions. So we know that

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Speaker 1: the Harvard case went up to the Circuit court, and

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Speaker 1: that's as we discussed awaiting perhaps Supreme Court review. What

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Speaker 1: about the other cases that they've filed. Yeah, so, UM

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Speaker 1: the University of North Carolina, they filed the case against

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Speaker 1: the University of North Carolina. They had a trial in

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Speaker 1: that case in November, and UM, the District Court is

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Speaker 1: waiting for the parties to file finding the fact and

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Speaker 1: conclusions of law later this month. And so we are

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Speaker 1: then awaiting a written decision from the judge in that case.

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Speaker 1: And that's just at the District court the trial level,

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Speaker 1: so it could be anywhere from you know, three to

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Speaker 1: six months two longer before we get a decision in

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Speaker 1: that case from the trial court. And now, what's happening

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Speaker 1: with the Texas case, I believe, Yeah, So there's a

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Speaker 1: case that's um pending in Texas and they are really

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Speaker 1: at the very early stages of that case. I just

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Speaker 1: checked and they have a scheduling order that was just

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Speaker 1: entered that has trial scheduled for September of two. So

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Speaker 1: it's going to be a long time before there's any

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Speaker 1: um decision in that case on the merits. The strange

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Speaker 1: thing about that case is that they are going to

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Speaker 1: be doing some briefing in the next few months on

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Speaker 1: some legal questions about whether the court should go forward

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Speaker 1: with this decision at all, based on the fact that

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Speaker 1: just a few years ago, the courts, including the Supreme Court,

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Speaker 1: reviewed the admissions process at the University of Texas Austin

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Speaker 1: and found it to be constitutional. So they're going to

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Speaker 1: do some briefing the next few months about Hey, as

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Speaker 1: f f A, do you get to litigate this all

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Speaker 1: again now or have we already decided this? So the

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Speaker 1: case might go away on those grounds within the next

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Speaker 1: you know, six months. But if that doesn't happen, then, UM,

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Speaker 1: it will be a long time before we get a

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Speaker 1: decision in that case. So looking at this as an outsider,

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Speaker 1: you know, a person would say, this looks like an

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Speaker 1: uphill battle for students for fair admissions. Do you agree

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Speaker 1: with that? No? And that's because of who's on the

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Speaker 1: Supreme Court. Now, UM, the you know when I said

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Speaker 1: that the case law from the Supreme Court says that

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Speaker 1: colleges and universities may consider race as long as they

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Speaker 1: have a compelling interest in their use of race is

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Speaker 1: narrowly tailored well. That decision is um only. UM was

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Speaker 1: only issued by five members of the Court when it

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Speaker 1: was last issued, and we have lost members of the

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Speaker 1: Supreme Court since that decision. So whether or not the

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Speaker 1: Court will um maintain that decision is very much an

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Speaker 1: open question and it depends on how Justices Kavanaugh, Cony, Barrett,

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Speaker 1: and Gorsets are going to rule. And UM, if you

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Speaker 1: were to UM ask most lawyers who know stuff about

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Speaker 1: this area of the law, I think most of us

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Speaker 1: would say that. We think they would probably say that

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Speaker 1: the Constitution does not allow colleges and universities to use race.

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Speaker 1: So then we get to that interesting question that uh,

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Speaker 1: Judge then Judge barrett Um and then Judge Kavanaugh now

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Speaker 1: Justices both or asked their confirmation hearing about well, what

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Speaker 1: do you think about starry decisive? How important? How important

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Speaker 1: is it to you even if you disagree with the

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Speaker 1: whole prior holding of the Supreme Court, to stick with

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Speaker 1: it because it is indeed a holding of the Supreme Court.

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Speaker 1: So is it in important to them that they stick

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Speaker 1: with this ruling that colleges and universities may consider rife

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Speaker 1: in a narrowly tailored way. Or is this one of

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Speaker 1: those cases where they say, actually, no, this is one

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Speaker 1: where we think we have to hold true to what

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Speaker 1: our best understanding of the Constitution is. So it will

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Speaker 1: end up being very interesting. Why do you think that

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Speaker 1: college admissions? I mean, it's been source of contention, It's

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Speaker 1: socially divisive. Why does it continue to be so socially

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Speaker 1: divisive decades after the question has been settled by the

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Speaker 1: Supreme Court? Oh, June, It's just we've been talking about

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Speaker 1: this for so many years and it's still the same

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Speaker 1: kind of controversy. I mean, compare it a little bit

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Speaker 1: to abortion. Yes, I think it's heavily bound up in

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Speaker 1: our nations history and goals with race and racial equality.

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Speaker 1: And until we make progress on those fronts, we're going

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Speaker 1: to continue to have UM issues with how is it

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Speaker 1: that we're going to determine and who gets to have

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Speaker 1: access to this most important commodity that can open doors

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Speaker 1: to so many places in our society. UM. But I

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Speaker 1: think it's I think it's heavily bound up in our

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Speaker 1: nation's history of race and racial equity. What did Obama

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Speaker 1: do during his administration as far as college admissions and

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Speaker 1: do we know what the Biden administration might be doing

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Speaker 1: besides this step? Is they doing anything actively? Well, the

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Speaker 1: thing that we saw from the Department of Education during

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Speaker 1: the Obama administration is they, for example, put out guidance

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Speaker 1: colleges and universities to say, hey, uh, it is consistent

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Speaker 1: with the Constitution to use race in a narrowly tailored

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Speaker 1: way in college admission, and here's some ways you might

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Speaker 1: do that. They put out guidance that UM was fairly

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Speaker 1: read to encourage colleges and universities to be raised conscious

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Speaker 1: to get more diversity in their student bodies. So you

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Speaker 1: might see that kind of thing happening again in the

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Speaker 1: Biden administration when UM students file complaints saying that the

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Speaker 1: Affirmative Action program at a particular school discriminated against them

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Speaker 1: because it UM allows in minority students that have that

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Speaker 1: don't have a perfect sa T and I, as a

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Speaker 1: white student, had a perfect SAP score and I didn't

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Speaker 1: get in. They're going to be less sympathetic to those complaints,

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Speaker 1: and they're going to deal with them in a different

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Speaker 1: way than the Trump administration don't want them. Thanks for

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Speaker 1: being the Bloomberg Law Show. Audrey. That's Audrey Anderson, who

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Speaker 1: has the higher education practice at Bassbarian Simms. That's it

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Speaker 1: for the sedition of the Bloomberg Law Show. I'm June Grasso.

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Speaker 1: Thanks so much for listening. Remember you can always get

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Speaker 1: the latest legal news on our Bloomberg Law Podcast. You

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

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Speaker 1: to Bloomberg