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

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Speaker 1: When Harvard was arguing its case for affirmative action at

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Speaker 1: the Supreme Court last October, Justice Neil Gorsitch brought up

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Speaker 1: the preferences given to the children of alumni and wealthy

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Speaker 1: donors in the admissions process.

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Speaker 2: If it just gave up preferences for donors, children, legacies,

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Speaker 2: and squash athletes, okay, or maybe those who rote crew,

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Speaker 2: all of which tend to favor predominantly white children, and

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Speaker 2: it could achieve whatever it deemed racial diversity, would it

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Speaker 2: then be permitted to engage in raci consciousness.

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Speaker 1: It's sometimes called affirmative action for white people, and it's

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Speaker 1: the target of the next fight over college admissions. A

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Speaker 1: few days after the Supreme Court struck down a firm action,

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Speaker 1: three minority groups filed a federal civil rights complaint against Harvard,

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Speaker 1: saying that legacy and donor admissions give an unfair advantage

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Speaker 1: to the mostly white students and discriminate against students of color.

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Speaker 1: Joining me to discuss this latest case is Audrey Anderson,

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Speaker 1: who heads the higher education practice at Bessbarian Simms. Audrey

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Speaker 1: the complaint cited records from Harvard showing that donor and

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Speaker 1: legacy applicants are six to seven times more likely to

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Speaker 1: be admitted and nearly seventy percent are white. Tell us

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Speaker 1: about the allegations.

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Speaker 3: So the complaint here is that the legacy preference that

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Speaker 3: Harvard College gives and the donor preference, so that is

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Speaker 3: that applicants who have a family member who graduated from

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Speaker 3: Harvard or a family member who donated a very large

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Speaker 3: amount of money to Harvard gets in the admissions process

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Speaker 3: what Harvard calls a tip or special consideration that makes

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Speaker 3: it much more likely that that applicant will be admitted

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Speaker 3: to Harvard. So the complainants allege that that violates Title six,

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Speaker 3: which is a federal law that makes it illegal to

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Speaker 3: discriminate on the basis of race if you receive federal funding.

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Speaker 3: More particularly, they say that it violates a regulation that

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Speaker 3: the Department of Education has issued that says that you

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Speaker 3: can't have a practice or a policy that has a

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Speaker 3: disparate impact based on race. And they say that because

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Speaker 3: most of the people who get the tip for donor

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Speaker 3: or legacy interests are white, the donor legacy tips have

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Speaker 3: a disproportionate impact negative impact on minorities, and so it

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Speaker 3: violates this regulation under Title six.

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Speaker 1: Does it sound as if they have a strong case here.

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Speaker 3: Well, it's a little ricky June, because there has not

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Speaker 3: been a lot of action by the federal government to

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Speaker 3: enforce their disparate impact regulations. Every agency in the federal

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Speaker 3: government has regulations, like the Department of Education does to

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Speaker 3: outlaw disparate impact discrimination. But the Supreme Court issued a

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Speaker 3: decision in two thousand and one Alexander versus Sandoval, in

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Speaker 3: which the Court held that a private party could not

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Speaker 3: bring a lawsuit to enforce these kind of regulations under

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Speaker 3: Title six. That's all the lawsuit was about. But in

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Speaker 3: the opinion for the majority, Justice Scalia wrote that if

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Speaker 3: the question were before him, he would find that these

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Speaker 3: regulations outlined disparate impact were not authorized by the Statute

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Speaker 3: itself by Title six, so he would find them uninformed

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Speaker 3: by anyone in any event. But that question was not

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Speaker 3: before him. So there's a real live question of are

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Speaker 3: these disparate impact regulations legal? Are they authorized under the

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Speaker 3: statutory language of Title six. The only thing Titles six

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Speaker 3: outlaws is intentional discrimination intentionally using race. So in the

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Speaker 3: affirmative action cases Harvard was intentionally using race as a factor. Here,

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Speaker 3: they're not intentionally using race. They're using legacy and donor status,

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Speaker 3: which has an impact based on race, but they're not

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Speaker 3: looking at race when they're doing it.

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Speaker 1: Are these groups looking for or asking for color blind

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Speaker 1: admissions or preferences for minority applicants.

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Speaker 3: Well, all they're looking for in this complaint is stop

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Speaker 3: using legacy and donor preferences. I mean, what's really interesting

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Speaker 3: is that that in the lawsuit everybody talked about legacy

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Speaker 3: and donor preferences along with two other preferences that Harvard

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Speaker 3: uses athlete preferences and preferences for applicants who have family

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Speaker 3: members who work at Harvard. This complaint does not attack

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Speaker 3: the athlete's preference or the preference for employees of Harvard,

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Speaker 3: only a tax these other two. Now, maybe that's because

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Speaker 3: there's no disparate impact based on race for the athlete preference,

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Speaker 3: though at Harvard I believe there is. I believe that

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Speaker 3: that probably primarily helps white students as well at Harvard

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Speaker 3: because they have so many sports that are not football.

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Speaker 3: So what I think this complaint is really about is

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Speaker 3: just a way to put more political pressure on Harvard

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Speaker 3: and other highly selective institutions to get rid of their

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Speaker 3: donor and legacy preferences, something that some institutions have already done,

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Speaker 3: and that I think there's a lot of political pressure

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Speaker 3: on places like Harvard and all other selective institutions that

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Speaker 3: say they want to racially diverse student body. This is

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Speaker 3: one preference they can get rid of that should help

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Speaker 3: a little bit get them more racially diverse student bodies.

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Speaker 3: And it's a little bit hard for the average person

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Speaker 3: to understand why anybody would get a preference because they

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Speaker 3: are a legacy. They understand why you get a preference

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Speaker 3: if your family member gave a lot of money, but

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Speaker 3: it doesn't make anybody feel very good.

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Speaker 1: Some schools like the University of California, Amherst College, Johns

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Speaker 1: Hopkins University, and MIT have already gotten rid of legacy admissions.

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Speaker 1: Has that improved the diversity at those schools.

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Speaker 3: I think that the research and the evidence that was

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Speaker 3: in the Harvard case showed that it might marginally help

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Speaker 3: just a little bit to get a more racially diversed

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Speaker 3: class if you got rid of of these preferences. So

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Speaker 3: we're talking, you know, it might help you by one

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Speaker 3: percent or less, so it's not an overwhelmingly helpful thing.

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Speaker 3: But I think that in light of the affirmative action

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Speaker 3: cases from last week, schools are going to be looking

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Speaker 3: for everything they can do that's not race conscious, that

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Speaker 3: they can do to up their racial diversity.

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Speaker 1: The complaint cited the Supreme Court ruling on Affirmative Action

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Speaker 1: and quoted college admissions are zero sum, and a benefit

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Speaker 1: provided to some applicants but not to others necessarily advantages

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Speaker 1: the former at the expense of the latter. And in

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Speaker 1: the oral arguments, Justice Neil Gorsich suggested eliminating legacy preferences.

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Speaker 1: But does any of that mean that if this case

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Speaker 1: came to the Supreme Court that the Court would rule

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Speaker 1: against preferences.

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Speaker 3: No, and it's because these preferences are not based on race.

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Speaker 3: They have a disparate impact based on race. But if

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Speaker 3: this came to the Supreme Court, I believe that six

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Speaker 3: members of the Supreme Court would instead say this regulation

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Speaker 3: that the Department of Education and every other agency in

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Speaker 3: the federal government has that prohibits rules that have a

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Speaker 3: disparate impact based on race. That regulation is not allowed

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Speaker 3: by the text of Title six. The text of Title

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Speaker 3: six only prohibits intentional discrimination, So you know, Gorsich would

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Speaker 3: probably say these legacy preferences are just crazy for any

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Speaker 3: school that says it also wants to be racially diverse.

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Speaker 3: But the Supreme Court doesn't have the ability to strike

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Speaker 3: down things that private parties do just because they think

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Speaker 3: they're crazy.

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Speaker 1: This is about federal funds. Do you know how much

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Speaker 1: Harvard gets and whether if it loses the federal funds

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Speaker 1: it could make that up in donor contributions.

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Speaker 3: They would not take that risk. I don't know how

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Speaker 3: much they get in federal funds. You know, it's at

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Speaker 3: least hundreds of millions of dollars in research funding that

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Speaker 3: Harvard gets, So it's a huge amount of money. And

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Speaker 3: what people don't understand about donor funds is that when

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Speaker 3: donors give money to a college, they virtually always do

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Speaker 3: that with restrictions. I'm giving Harvard this money because I

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Speaker 3: want Harvard to use it for scholarships for these kinds

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Speaker 3: of students. I want Harvard to use it for cancer research.

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Speaker 3: I want Harvard to use it to build this kind

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Speaker 3: of a building. And when those restrictions are put on

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Speaker 3: the money, Harvard cannot then use the money for another purpose.

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Speaker 3: Harvard usually cannot use the funds that are earned on

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Speaker 3: that money for another purpose. So Harvard has a huge

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Speaker 3: endowment that spins off huge amounts of money, but they

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Speaker 3: can't just use it for anything they want to use

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Speaker 3: it for. They have to use it for the purposes

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Speaker 3: that the donors put on those funds. And if you

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Speaker 3: think about it, and you're one of the people who

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Speaker 3: gave that money, that makes a whole lot of sense.

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Speaker 3: If you gave your money for a particular purpose, you

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Speaker 3: don't want the college to then just be able to

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Speaker 3: use it for something else that they decide is more important.

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Speaker 1: This complaint was file with the Department of Education's Office

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Speaker 1: for Civil Rights. What happens next.

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Speaker 3: What happened next is the Office for Civil Rights will

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Speaker 3: decide whether or not it wants to open an investigation

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Speaker 3: of this complaint. These things are usually not public. Usually

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Speaker 3: what happens is just that ocr will reach out to

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Speaker 3: Harvard and say that they've received a complaint and they'd

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Speaker 3: like to get some information from Harvard to determine whether

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Speaker 3: or not the complaint has any validity. One of the

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Speaker 3: most interesting things about this is that these groups said

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Speaker 3: they were filing a complaint. Many people think that it's

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Speaker 3: lawsuit when it's not, and so now there's an expectation

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Speaker 3: that this is all going to be public. Usually these

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Speaker 3: things are completely private until maybe the end when the

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Speaker 3: Office for Civil Rights announces that they've entered into some

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Speaker 3: kind of a settlement agreement. And this is what the

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Speaker 3: Institution has decided to do rather than be found to

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Speaker 3: be in violation of Title six and be fined by

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Speaker 3: the government. It's a little weird with this because there's

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Speaker 3: so much information already in the public record from the lawsuit,

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Speaker 3: and ocr may decide that that's just enough information for

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Speaker 3: them and they don't want anything additional.

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Speaker 4: But we'll have to see.

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Speaker 1: Are colleges and universities struggling to figure out how they

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Speaker 1: can get a diverse student body in light of the

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Speaker 1: Supreme Court decision? Or is the only opening, you know,

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Speaker 1: the sort of loophole where it says students can use

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Speaker 1: college essays to describe their experiences as a minority.

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Speaker 3: I think that schools will be doing a lot of

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Speaker 3: work and this is going to be something that plays

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Speaker 3: out over the coming years. I believe June and there

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Speaker 3: will be a lot of litigation over the coming years

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Speaker 3: for things that colleges and universities do that will be

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Speaker 3: challenged by folks who say, well, that's just a proxy

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Speaker 3: for race, because schools won't be able to do things

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Speaker 3: that are just a proxy for using race. So they can't,

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Speaker 3: as the Chief Justice said in his opinion, you can't

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Speaker 3: use what somebody says in their essay just to say, oh,

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Speaker 3: now we know this person is of this racial group,

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Speaker 3: who are going to give them a plus? It really

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Speaker 3: has to be that, oh, this person in their essay

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Speaker 3: really wrote very movingly and convincingly about how their racial

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Speaker 3: background affected their life, and that kind of experience someone

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Speaker 3: has is going to add to our class. If somebody

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Speaker 3: just wrote it and their essay and their first sentence, hi,

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Speaker 3: I'm an Hispanic woman, and then all the rest of

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Speaker 3: their essay was about their English class but had nothing

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Speaker 3: to do with their background of being an Hispanic woman,

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Speaker 3: and that person, it was shown, got a tip for

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Speaker 3: their race. That would be a proxy for race, and

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Speaker 3: you can't do that. What schools are going to end

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Speaker 3: up doing now, I think some of them are going

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Speaker 3: to go back and say, Okay, let's look very deeply

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Speaker 3: at our mission. What is it that we are really

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Speaker 3: trying to do in our education at our institution? What

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Speaker 3: are our goals? What is our mission? And in looking

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Speaker 3: at that and looking at the kind of students that

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Speaker 3: we think are best for our institution, what are the measures,

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Speaker 3: what are the things? What are the traits that are

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Speaker 3: really going to be best for the students that are

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Speaker 3: going to to succeed at our college or university. When

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Speaker 3: most schools do that, it's going to be hard to say, well,

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Speaker 3: somebody whose parents gave a lot of money to the

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Speaker 3: school has a kind of traits that we really wanted

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Speaker 3: our university. But I'm talking here about the schools that

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Speaker 3: really have the ability to do that, who are very selective,

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Speaker 3: who already have a large endowment. Most schools in the

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Speaker 3: United States are facing a whole different problem, which is

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Speaker 3: that they are looking at a demographic enrollment cliff where

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Speaker 3: the numbers of people who are of college age is

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Speaker 3: dropping off significantly and they're just going to have to

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Speaker 3: fill seats. So the other thing we have to keep

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Speaker 3: in mind in all of this, even with all the

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Speaker 3: concern that is being expressed for schools that are selective

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Speaker 3: and do want to have racially diverse student bodies. Is

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Speaker 3: that most people in America are getting a great college

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Speaker 3: education at places that aren't thinking about or worrying about

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Speaker 3: this at all, and that are just admits students and

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Speaker 3: giving them a great education. So the elite institutions are

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Speaker 3: certainly important, but in terms of kind of driving our

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Speaker 3: economy forward and our country forward for most college students,

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Speaker 3: this as a sideshow.

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Speaker 1: Thanks for being on the show, Audrey. That's Audrey Anderson

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Speaker 1: of Bess, Berry and Sims. Republicans may have blocked President

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Speaker 1: Biden from enacting much of his policy agenda, but there's

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Speaker 1: one area where they haven't been able to hold him back,

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Speaker 1: his drive to reshape the courts. With one hundred and

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Speaker 1: thirty six federal judges confirmed, Biden has now surpassed Presidents Trump, Obama,

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Speaker 1: and George W. Bush up to this point in their presidencies,

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Speaker 1: and two thirds of those nominees are women and two

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Speaker 1: thirds are people of color. I'm joined by an expert

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Speaker 1: in the federal judiciary, Carl Tobias, a professor at the

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Speaker 1: University of Richmond Law School. You know, tell us about

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Speaker 1: Biden's record on judicial nominations and where it stands in

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Speaker 1: relation to other presidents.

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Speaker 4: Well, he still is very much ahead at this point

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Speaker 4: in his presidency in terms of the total number of

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Speaker 4: appellate and district judges whom he has nominated and confirmed.

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Speaker 4: For the district courts, there are one hundred who have

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Speaker 4: been confirmed, which is a milestone, and then there are

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Speaker 4: thirty five confirmed for the appellate courts. Trump at this

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Speaker 4: point in his presidency had done a little better on

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Speaker 4: the appellate ones, but of course he focused on those

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Speaker 4: like a laser, and he had confirmed forty two at

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Speaker 4: this point in his presidency, but only eighty four for

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Speaker 4: the district So still Biden is ahead, and that includes

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Speaker 4: Bush and President Obama. And so it's good in that sense.

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Speaker 4: But what's so striking is diversity in terms of ethnicity,

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Speaker 4: a gender, sexual orience, Haitian and especially experienced and ideology.

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Speaker 4: And two thirds of the judges confirmed are women and

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Speaker 4: two thirds are people of color, and that's just unprecedented

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Speaker 4: in terms of records but also experience. So you have

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Speaker 4: quite recently in New York and other places around the

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Speaker 4: country California experiential diversity in the sense of being federal

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Speaker 4: public defenders, state public defenders, or civil rights lawyers worked

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Speaker 4: for the ACLU, and all kinds of other people who

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Speaker 4: have less traditional types of practice recently, and you know,

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Speaker 4: in modern times it's mostly been people who are former

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Speaker 4: US attorneys or assistant US attorneys, prosecutors in the state system,

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Speaker 4: and people from big law firms. But has changed that

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Speaker 4: experiential qualification quite a bit with his nominees, especially on

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Speaker 4: the Appeals Court.

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Speaker 1: So what's ahead. I mean, he has a limited time

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Speaker 1: left in its first term, perhaps his last term. I

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Speaker 1: don't know what is the goal now.

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Speaker 4: Well, I think it's to confirm as many people as

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Speaker 4: possible before they stop the whole process, and that will

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Speaker 4: happen at some point in twenty twenty four. But of

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Speaker 4: course you can remember in twenty twenty I believe Trump

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Speaker 4: went right up to the bitter end and actually confirmed

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Speaker 4: thirteen people after the election.

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Speaker 1: And a Supreme Court justice.

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Speaker 4: I think, yes, it was a week before, but it

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Speaker 4: was very late in his tenure, to be sure. So

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Speaker 4: Biden has right now fourteen district nominees on the floor

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Speaker 4: who are waiting votes for who are waiting Senate Judiciary

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Speaker 4: Committee votes on seven twenty Later this month, two nominees

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Speaker 4: awaiting hearings and four nominees have not been sent to

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Speaker 4: the Senate yet and they would have hearings. So that's

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Speaker 4: what I think we'll see in twenty twenty three, as

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Speaker 4: well as three Pellet nominees who are on the floor

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Speaker 4: waiting votes, and those may come before they break for August.

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Speaker 4: So when they come back and after Labor Day, then

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Speaker 4: I think they'll try to finish out and keep going

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Speaker 4: and the White House will have more nominees. That's what

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Speaker 4: they need now, and shar Durbin has promised every two

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Speaker 4: weeks they're in session that they'll be a hearing.

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Speaker 1: Have a lot of the votes been close votes, closely

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Speaker 1: divided votes where all the Republicans voted against a nominee yes.

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Speaker 4: There have been a number and there's a lot of

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Speaker 4: locks extep voting on both sides. The Democrats have pretty

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Speaker 4: much held together. Senator Mansion has voted no on a

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Speaker 4: couple of nominees, but Senator Cinema has been voting with

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Speaker 4: Democrats and all the rest of the Democrats have voted.

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Speaker 4: Senator Feinstein has been there for most of the votes recently.

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Speaker 4: That looks like it will continue that way, especially if

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Speaker 4: it's a nominee who the Republicans find to be controversial,

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Speaker 4: and there's some of those, and they've been quite close,

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Speaker 4: some fifty forty nine votes and sometimes ties where the

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Speaker 4: Vice president has broken the tie. There's been some bipartisanship,

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Speaker 4: especially Senator Graham, who I think is the most frequent

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Speaker 4: Republican to vote for Democrats because he believes in deference

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Speaker 4: to the president when nominations come, and then Senators Murkowski

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Speaker 4: and Collins quite often are voting with Graham.

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Speaker 1: What's happening with the blue slips in red states and

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Speaker 1: district court nominations, Well.

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Speaker 4: That's a very good question, because there are a number

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Speaker 4: of vacancies now, especially in states represented by two Republicans

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Speaker 4: where there hasn't been a lot of movement, and some

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Speaker 4: of these have been around for a couple of years,

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Speaker 4: and I think the White House is trying to work

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Speaker 4: with those senators and senators have engaged to some extent

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Speaker 4: and there have been some quite valuable efforts on the part,

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Speaker 4: for example of the Indiana Senators, the Louisiana senators in

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Speaker 4: red states, the Idaho senators had a very successful nominee

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Speaker 4: who easily went through on a strong bipartisan vote. But

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Speaker 4: there are other places. For example, Texas has a number

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Speaker 4: of district vacancies that need to be filled, I think

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Speaker 4: six or eight and they're all emergencies. Florida has four

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Speaker 4: emergency vacancies I think in the Southern district alone, and

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Speaker 4: there hasn't been much cooperation there. I think the Texas Senators,

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Speaker 4: though Cornyan has said, are working with the White House,

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Speaker 4: so hopefully that will work in there's a nominee for

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Speaker 4: the fifth Circuit named Ramirez, and she will have strong

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Speaker 4: bipartisan support, had a great hearing. But there are a

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Speaker 4: number of other states too, Missouri and quite a few

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Speaker 4: red states where it just doesn't seem to be much

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Speaker 4: back and forth between the White House and the home

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Speaker 4: state senators. And I think the White House will be flexible.

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Speaker 4: I mean, I think they will try to work with

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Speaker 4: the red state senators to reach some consensus about nominees,

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Speaker 4: and that's happened in certain situations. For example, magistrate judges

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Speaker 4: are often considered to be very competent and not terribly political,

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Speaker 4: and that has some appeal. They also have nominated a

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Speaker 4: number of prosecutors in the federal system and state systems.

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Speaker 4: GOP members are more favorably inclined to those nominees. So

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Speaker 4: there have been some breakthroughs, but I think we're going

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Speaker 4: to see that at some point they're going to run

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Speaker 4: out of a blue state nominees. But even there are

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Speaker 4: some and you have two home state Democrats and they

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Speaker 4: can't agree on who the White House should nominate. That

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Speaker 4: you know shouldn't happen, So.

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Speaker 1: Carl, there have been a lot of ethical questions surrounding

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Speaker 1: the Supreme Court in light of the revelation about Justice

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Speaker 1: Clarence Thomas and his relationship with a Republican mega donor,

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Speaker 1: and then Justice Alito and his relationship. But the justices

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Speaker 1: went off on vacation without doing anything about it. Can

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Speaker 1: anything be done if the justices themselves won't adopt a

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Speaker 1: code of ethics?

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Speaker 4: Well, I believe the Democrats are moving on that front.

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Speaker 4: There was a hearing in June before Senator Whitehouse's sub committee,

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Speaker 4: and there is a bill in to try to move

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Speaker 4: the court towards refusal requirements and other ethical standards. And

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Speaker 4: one argument that's made which seems to have a lot

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Speaker 4: of validity is twenty at USC for fifty five governs,

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Speaker 4: conflicts of interest for all lower federal court judges, including

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Speaker 4: magistrate judges and district judges and appellate judges and bankruptcy judges,

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Speaker 4: and those judges all have to recuse. There's a conflict.

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Speaker 4: But the justices have insisted so far on not having

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Speaker 4: that code of conduct or adopting it, and there's real

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Speaker 4: concern about that, and so this legislation, I think, would

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Speaker 4: impose some requirements, and for example, you could follow complaints

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Speaker 4: and then there would be a random five circuit judges

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Speaker 4: who would rule on that. I think Republicans have raised

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Speaker 4: some questions about separation of powers in that context, because

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Speaker 4: they consider the court to be a separate branch. But

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Speaker 4: of course there are all kinds of ways in which

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Speaker 4: Congress does at least fund the various parts of the

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Speaker 4: court system, and so I think there's a feeling that

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Speaker 4: the Congress can legislate. And of course, what would be best,

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Speaker 4: I think, is if the justices came around to the

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Speaker 4: view that they should have similar ethics requirements to those

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Speaker 4: imposed on the lower court judges. And I think that

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Speaker 4: would be the best solution. But we'll see. I don't

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Speaker 4: know that it's going to pass in the House, even

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Speaker 4: if it gets through the Senate, but at least it

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Speaker 4: is some discussion going on Senate and some legislation, and

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Speaker 4: they had I think fairly constructive hearing, but we'll see.

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Speaker 1: Thanks Carl. That's Professor Carl Tobias of the University of

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Speaker 1: Richmond School of Law. And that's it for this edition

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Speaker 1: of The Bloomberg Law Show. Remember you can always get

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