Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: When Harvard was arguing its case for affirmative action at
Speaker 1: the Supreme Court last October, Justice Neil Gorsitch brought up
Speaker 1: the preferences given to the children of alumni and wealthy
Speaker 1: donors in the admissions process.
Speaker 2: If it just gave up preferences for donors, children, legacies,
Speaker 2: and squash athletes, okay, or maybe those who rote crew,
Speaker 2: all of which tend to favor predominantly white children, and
Speaker 2: it could achieve whatever it deemed racial diversity, would it
Speaker 2: then be permitted to engage in raci consciousness.
Speaker 1: It's sometimes called affirmative action for white people, and it's
Speaker 1: the target of the next fight over college admissions. A
Speaker 1: few days after the Supreme Court struck down a firm action,
Speaker 1: three minority groups filed a federal civil rights complaint against Harvard,
Speaker 1: saying that legacy and donor admissions give an unfair advantage
Speaker 1: to the mostly white students and discriminate against students of color.
Speaker 1: Joining me to discuss this latest case is Audrey Anderson,
Speaker 1: who heads the higher education practice at Bessbarian Simms. Audrey
Speaker 1: the complaint cited records from Harvard showing that donor and
Speaker 1: legacy applicants are six to seven times more likely to
Speaker 1: be admitted and nearly seventy percent are white. Tell us
Speaker 1: about the allegations.
Speaker 3: So the complaint here is that the legacy preference that
Speaker 3: Harvard College gives and the donor preference, so that is
Speaker 3: that applicants who have a family member who graduated from
Speaker 3: Harvard or a family member who donated a very large
Speaker 3: amount of money to Harvard gets in the admissions process
Speaker 3: what Harvard calls a tip or special consideration that makes
Speaker 3: it much more likely that that applicant will be admitted
Speaker 3: to Harvard. So the complainants allege that that violates Title six,
Speaker 3: which is a federal law that makes it illegal to
Speaker 3: discriminate on the basis of race if you receive federal funding.
Speaker 3: More particularly, they say that it violates a regulation that
Speaker 3: the Department of Education has issued that says that you
Speaker 3: can't have a practice or a policy that has a
Speaker 3: disparate impact based on race. And they say that because
Speaker 3: most of the people who get the tip for donor
Speaker 3: or legacy interests are white, the donor legacy tips have
Speaker 3: a disproportionate impact negative impact on minorities, and so it
Speaker 3: violates this regulation under Title six.
Speaker 1: Does it sound as if they have a strong case here.
Speaker 3: Well, it's a little ricky June, because there has not
Speaker 3: been a lot of action by the federal government to
Speaker 3: enforce their disparate impact regulations. Every agency in the federal
Speaker 3: government has regulations, like the Department of Education does to
Speaker 3: outlaw disparate impact discrimination. But the Supreme Court issued a
Speaker 3: decision in two thousand and one Alexander versus Sandoval, in
Speaker 3: which the Court held that a private party could not
Speaker 3: bring a lawsuit to enforce these kind of regulations under
Speaker 3: Title six. That's all the lawsuit was about. But in
Speaker 3: the opinion for the majority, Justice Scalia wrote that if
Speaker 3: the question were before him, he would find that these
Speaker 3: regulations outlined disparate impact were not authorized by the Statute
Speaker 3: itself by Title six, so he would find them uninformed
Speaker 3: by anyone in any event. But that question was not
Speaker 3: before him. So there's a real live question of are
Speaker 3: these disparate impact regulations legal? Are they authorized under the
Speaker 3: statutory language of Title six. The only thing Titles six
Speaker 3: outlaws is intentional discrimination intentionally using race. So in the
Speaker 3: affirmative action cases Harvard was intentionally using race as a factor. Here,
Speaker 3: they're not intentionally using race. They're using legacy and donor status,
Speaker 3: which has an impact based on race, but they're not
Speaker 3: looking at race when they're doing it.
Speaker 1: Are these groups looking for or asking for color blind
Speaker 1: admissions or preferences for minority applicants.
Speaker 3: Well, all they're looking for in this complaint is stop
Speaker 3: using legacy and donor preferences. I mean, what's really interesting
Speaker 3: is that that in the lawsuit everybody talked about legacy
Speaker 3: and donor preferences along with two other preferences that Harvard
Speaker 3: uses athlete preferences and preferences for applicants who have family
Speaker 3: members who work at Harvard. This complaint does not attack
Speaker 3: the athlete's preference or the preference for employees of Harvard,
Speaker 3: only a tax these other two. Now, maybe that's because
Speaker 3: there's no disparate impact based on race for the athlete preference,
Speaker 3: though at Harvard I believe there is. I believe that
Speaker 3: that probably primarily helps white students as well at Harvard
Speaker 3: because they have so many sports that are not football.
Speaker 3: So what I think this complaint is really about is
Speaker 3: just a way to put more political pressure on Harvard
Speaker 3: and other highly selective institutions to get rid of their
Speaker 3: donor and legacy preferences, something that some institutions have already done,
Speaker 3: and that I think there's a lot of political pressure
Speaker 3: on places like Harvard and all other selective institutions that
Speaker 3: say they want to racially diverse student body. This is
Speaker 3: one preference they can get rid of that should help
Speaker 3: a little bit get them more racially diverse student bodies.
Speaker 3: And it's a little bit hard for the average person
Speaker 3: to understand why anybody would get a preference because they
Speaker 3: are a legacy. They understand why you get a preference
Speaker 3: if your family member gave a lot of money, but
Speaker 3: it doesn't make anybody feel very good.
Speaker 1: Some schools like the University of California, Amherst College, Johns
Speaker 1: Hopkins University, and MIT have already gotten rid of legacy admissions.
Speaker 1: Has that improved the diversity at those schools.
Speaker 3: I think that the research and the evidence that was
Speaker 3: in the Harvard case showed that it might marginally help
Speaker 3: just a little bit to get a more racially diversed
Speaker 3: class if you got rid of of these preferences. So
Speaker 3: we're talking, you know, it might help you by one
Speaker 3: percent or less, so it's not an overwhelmingly helpful thing.
Speaker 3: But I think that in light of the affirmative action
Speaker 3: cases from last week, schools are going to be looking
Speaker 3: for everything they can do that's not race conscious, that
Speaker 3: they can do to up their racial diversity.
Speaker 1: The complaint cited the Supreme Court ruling on Affirmative Action
Speaker 1: and quoted college admissions are zero sum, and a benefit
Speaker 1: provided to some applicants but not to others necessarily advantages
Speaker 1: the former at the expense of the latter. And in
Speaker 1: the oral arguments, Justice Neil Gorsich suggested eliminating legacy preferences.
Speaker 1: But does any of that mean that if this case
Speaker 1: came to the Supreme Court that the Court would rule
Speaker 1: against preferences.
Speaker 3: No, and it's because these preferences are not based on race.
Speaker 3: They have a disparate impact based on race. But if
Speaker 3: this came to the Supreme Court, I believe that six
Speaker 3: members of the Supreme Court would instead say this regulation
Speaker 3: that the Department of Education and every other agency in
Speaker 3: the federal government has that prohibits rules that have a
Speaker 3: disparate impact based on race. That regulation is not allowed
Speaker 3: by the text of Title six. The text of Title
Speaker 3: six only prohibits intentional discrimination, So you know, Gorsich would
Speaker 3: probably say these legacy preferences are just crazy for any
Speaker 3: school that says it also wants to be racially diverse.
Speaker 3: But the Supreme Court doesn't have the ability to strike
Speaker 3: down things that private parties do just because they think
Speaker 3: they're crazy.
Speaker 1: This is about federal funds. Do you know how much
Speaker 1: Harvard gets and whether if it loses the federal funds
Speaker 1: it could make that up in donor contributions.
Speaker 3: They would not take that risk. I don't know how
Speaker 3: much they get in federal funds. You know, it's at
Speaker 3: least hundreds of millions of dollars in research funding that
Speaker 3: Harvard gets, So it's a huge amount of money. And
Speaker 3: what people don't understand about donor funds is that when
Speaker 3: donors give money to a college, they virtually always do
Speaker 3: that with restrictions. I'm giving Harvard this money because I
Speaker 3: want Harvard to use it for scholarships for these kinds
Speaker 3: of students. I want Harvard to use it for cancer research.
Speaker 3: I want Harvard to use it to build this kind
Speaker 3: of a building. And when those restrictions are put on
Speaker 3: the money, Harvard cannot then use the money for another purpose.
Speaker 3: Harvard usually cannot use the funds that are earned on
Speaker 3: that money for another purpose. So Harvard has a huge
Speaker 3: endowment that spins off huge amounts of money, but they
Speaker 3: can't just use it for anything they want to use
Speaker 3: it for. They have to use it for the purposes
Speaker 3: that the donors put on those funds. And if you
Speaker 3: think about it, and you're one of the people who
Speaker 3: gave that money, that makes a whole lot of sense.
Speaker 3: If you gave your money for a particular purpose, you
Speaker 3: don't want the college to then just be able to
Speaker 3: use it for something else that they decide is more important.
Speaker 1: This complaint was file with the Department of Education's Office
Speaker 1: for Civil Rights. What happens next.
Speaker 3: What happened next is the Office for Civil Rights will
Speaker 3: decide whether or not it wants to open an investigation
Speaker 3: of this complaint. These things are usually not public. Usually
Speaker 3: what happens is just that ocr will reach out to
Speaker 3: Harvard and say that they've received a complaint and they'd
Speaker 3: like to get some information from Harvard to determine whether
Speaker 3: or not the complaint has any validity. One of the
Speaker 3: most interesting things about this is that these groups said
Speaker 3: they were filing a complaint. Many people think that it's
Speaker 3: lawsuit when it's not, and so now there's an expectation
Speaker 3: that this is all going to be public. Usually these
Speaker 3: things are completely private until maybe the end when the
Speaker 3: Office for Civil Rights announces that they've entered into some
Speaker 3: kind of a settlement agreement. And this is what the
Speaker 3: Institution has decided to do rather than be found to
Speaker 3: be in violation of Title six and be fined by
Speaker 3: the government. It's a little weird with this because there's
Speaker 3: so much information already in the public record from the lawsuit,
Speaker 3: and ocr may decide that that's just enough information for
Speaker 3: them and they don't want anything additional.
Speaker 4: But we'll have to see.
Speaker 1: Are colleges and universities struggling to figure out how they
Speaker 1: can get a diverse student body in light of the
Speaker 1: Supreme Court decision? Or is the only opening, you know,
Speaker 1: the sort of loophole where it says students can use
Speaker 1: college essays to describe their experiences as a minority.
Speaker 3: I think that schools will be doing a lot of
Speaker 3: work and this is going to be something that plays
Speaker 3: out over the coming years. I believe June and there
Speaker 3: will be a lot of litigation over the coming years
Speaker 3: for things that colleges and universities do that will be
Speaker 3: challenged by folks who say, well, that's just a proxy
Speaker 3: for race, because schools won't be able to do things
Speaker 3: that are just a proxy for using race. So they can't,
Speaker 3: as the Chief Justice said in his opinion, you can't
Speaker 3: use what somebody says in their essay just to say, oh,
Speaker 3: now we know this person is of this racial group,
Speaker 3: who are going to give them a plus? It really
Speaker 3: has to be that, oh, this person in their essay
Speaker 3: really wrote very movingly and convincingly about how their racial
Speaker 3: background affected their life, and that kind of experience someone
Speaker 3: has is going to add to our class. If somebody
Speaker 3: just wrote it and their essay and their first sentence, hi,
Speaker 3: I'm an Hispanic woman, and then all the rest of
Speaker 3: their essay was about their English class but had nothing
Speaker 3: to do with their background of being an Hispanic woman,
Speaker 3: and that person, it was shown, got a tip for
Speaker 3: their race. That would be a proxy for race, and
Speaker 3: you can't do that. What schools are going to end
Speaker 3: up doing now, I think some of them are going
Speaker 3: to go back and say, Okay, let's look very deeply
Speaker 3: at our mission. What is it that we are really
Speaker 3: trying to do in our education at our institution? What
Speaker 3: are our goals? What is our mission? And in looking
Speaker 3: at that and looking at the kind of students that
Speaker 3: we think are best for our institution, what are the measures,
Speaker 3: what are the things? What are the traits that are
Speaker 3: really going to be best for the students that are
Speaker 3: going to to succeed at our college or university. When
Speaker 3: most schools do that, it's going to be hard to say, well,
Speaker 3: somebody whose parents gave a lot of money to the
Speaker 3: school has a kind of traits that we really wanted
Speaker 3: our university. But I'm talking here about the schools that
Speaker 3: really have the ability to do that, who are very selective,
Speaker 3: who already have a large endowment. Most schools in the
Speaker 3: United States are facing a whole different problem, which is
Speaker 3: that they are looking at a demographic enrollment cliff where
Speaker 3: the numbers of people who are of college age is
Speaker 3: dropping off significantly and they're just going to have to
Speaker 3: fill seats. So the other thing we have to keep
Speaker 3: in mind in all of this, even with all the
Speaker 3: concern that is being expressed for schools that are selective
Speaker 3: and do want to have racially diverse student bodies. Is
Speaker 3: that most people in America are getting a great college
Speaker 3: education at places that aren't thinking about or worrying about
Speaker 3: this at all, and that are just admits students and
Speaker 3: giving them a great education. So the elite institutions are
Speaker 3: certainly important, but in terms of kind of driving our
Speaker 3: economy forward and our country forward for most college students,
Speaker 3: this as a sideshow.
Speaker 1: Thanks for being on the show, Audrey. That's Audrey Anderson
Speaker 1: of Bess, Berry and Sims. Republicans may have blocked President
Speaker 1: Biden from enacting much of his policy agenda, but there's
Speaker 1: one area where they haven't been able to hold him back,
Speaker 1: his drive to reshape the courts. With one hundred and
Speaker 1: thirty six federal judges confirmed, Biden has now surpassed Presidents Trump, Obama,
Speaker 1: and George W. Bush up to this point in their presidencies,
Speaker 1: and two thirds of those nominees are women and two
Speaker 1: thirds are people of color. I'm joined by an expert
Speaker 1: in the federal judiciary, Carl Tobias, a professor at the
Speaker 1: University of Richmond Law School. You know, tell us about
Speaker 1: Biden's record on judicial nominations and where it stands in
Speaker 1: relation to other presidents.
Speaker 4: Well, he still is very much ahead at this point
Speaker 4: in his presidency in terms of the total number of
Speaker 4: appellate and district judges whom he has nominated and confirmed.
Speaker 4: For the district courts, there are one hundred who have
Speaker 4: been confirmed, which is a milestone, and then there are
Speaker 4: thirty five confirmed for the appellate courts. Trump at this
Speaker 4: point in his presidency had done a little better on
Speaker 4: the appellate ones, but of course he focused on those
Speaker 4: like a laser, and he had confirmed forty two at
Speaker 4: this point in his presidency, but only eighty four for
Speaker 4: the district So still Biden is ahead, and that includes
Speaker 4: Bush and President Obama. And so it's good in that sense.
Speaker 4: But what's so striking is diversity in terms of ethnicity,
Speaker 4: a gender, sexual orience, Haitian and especially experienced and ideology.
Speaker 4: And two thirds of the judges confirmed are women and
Speaker 4: two thirds are people of color, and that's just unprecedented
Speaker 4: in terms of records but also experience. So you have
Speaker 4: quite recently in New York and other places around the
Speaker 4: country California experiential diversity in the sense of being federal
Speaker 4: public defenders, state public defenders, or civil rights lawyers worked
Speaker 4: for the ACLU, and all kinds of other people who
Speaker 4: have less traditional types of practice recently, and you know,
Speaker 4: in modern times it's mostly been people who are former
Speaker 4: US attorneys or assistant US attorneys, prosecutors in the state system,
Speaker 4: and people from big law firms. But has changed that
Speaker 4: experiential qualification quite a bit with his nominees, especially on
Speaker 4: the Appeals Court.
Speaker 1: So what's ahead. I mean, he has a limited time
Speaker 1: left in its first term, perhaps his last term. I
Speaker 1: don't know what is the goal now.
Speaker 4: Well, I think it's to confirm as many people as
Speaker 4: possible before they stop the whole process, and that will
Speaker 4: happen at some point in twenty twenty four. But of
Speaker 4: course you can remember in twenty twenty I believe Trump
Speaker 4: went right up to the bitter end and actually confirmed
Speaker 4: thirteen people after the election.
Speaker 1: And a Supreme Court justice.
Speaker 4: I think, yes, it was a week before, but it
Speaker 4: was very late in his tenure, to be sure. So
Speaker 4: Biden has right now fourteen district nominees on the floor
Speaker 4: who are waiting votes for who are waiting Senate Judiciary
Speaker 4: Committee votes on seven twenty Later this month, two nominees
Speaker 4: awaiting hearings and four nominees have not been sent to
Speaker 4: the Senate yet and they would have hearings. So that's
Speaker 4: what I think we'll see in twenty twenty three, as
Speaker 4: well as three Pellet nominees who are on the floor
Speaker 4: waiting votes, and those may come before they break for August.
Speaker 4: So when they come back and after Labor Day, then
Speaker 4: I think they'll try to finish out and keep going
Speaker 4: and the White House will have more nominees. That's what
Speaker 4: they need now, and shar Durbin has promised every two
Speaker 4: weeks they're in session that they'll be a hearing.
Speaker 1: Have a lot of the votes been close votes, closely
Speaker 1: divided votes where all the Republicans voted against a nominee yes.
Speaker 4: There have been a number and there's a lot of
Speaker 4: locks extep voting on both sides. The Democrats have pretty
Speaker 4: much held together. Senator Mansion has voted no on a
Speaker 4: couple of nominees, but Senator Cinema has been voting with
Speaker 4: Democrats and all the rest of the Democrats have voted.
Speaker 4: Senator Feinstein has been there for most of the votes recently.
Speaker 4: That looks like it will continue that way, especially if
Speaker 4: it's a nominee who the Republicans find to be controversial,
Speaker 4: and there's some of those, and they've been quite close,
Speaker 4: some fifty forty nine votes and sometimes ties where the
Speaker 4: Vice president has broken the tie. There's been some bipartisanship,
Speaker 4: especially Senator Graham, who I think is the most frequent
Speaker 4: Republican to vote for Democrats because he believes in deference
Speaker 4: to the president when nominations come, and then Senators Murkowski
Speaker 4: and Collins quite often are voting with Graham.
Speaker 1: What's happening with the blue slips in red states and
Speaker 1: district court nominations, Well.
Speaker 4: That's a very good question, because there are a number
Speaker 4: of vacancies now, especially in states represented by two Republicans
Speaker 4: where there hasn't been a lot of movement, and some
Speaker 4: of these have been around for a couple of years,
Speaker 4: and I think the White House is trying to work
Speaker 4: with those senators and senators have engaged to some extent
Speaker 4: and there have been some quite valuable efforts on the part,
Speaker 4: for example of the Indiana Senators, the Louisiana senators in
Speaker 4: red states, the Idaho senators had a very successful nominee
Speaker 4: who easily went through on a strong bipartisan vote. But
Speaker 4: there are other places. For example, Texas has a number
Speaker 4: of district vacancies that need to be filled, I think
Speaker 4: six or eight and they're all emergencies. Florida has four
Speaker 4: emergency vacancies I think in the Southern district alone, and
Speaker 4: there hasn't been much cooperation there. I think the Texas Senators,
Speaker 4: though Cornyan has said, are working with the White House,
Speaker 4: so hopefully that will work in there's a nominee for
Speaker 4: the fifth Circuit named Ramirez, and she will have strong
Speaker 4: bipartisan support, had a great hearing. But there are a
Speaker 4: number of other states too, Missouri and quite a few
Speaker 4: red states where it just doesn't seem to be much
Speaker 4: back and forth between the White House and the home
Speaker 4: state senators. And I think the White House will be flexible.
Speaker 4: I mean, I think they will try to work with
Speaker 4: the red state senators to reach some consensus about nominees,
Speaker 4: and that's happened in certain situations. For example, magistrate judges
Speaker 4: are often considered to be very competent and not terribly political,
Speaker 4: and that has some appeal. They also have nominated a
Speaker 4: number of prosecutors in the federal system and state systems.
Speaker 4: GOP members are more favorably inclined to those nominees. So
Speaker 4: there have been some breakthroughs, but I think we're going
Speaker 4: to see that at some point they're going to run
Speaker 4: out of a blue state nominees. But even there are
Speaker 4: some and you have two home state Democrats and they
Speaker 4: can't agree on who the White House should nominate. That
Speaker 4: you know shouldn't happen, So.
Speaker 1: Carl, there have been a lot of ethical questions surrounding
Speaker 1: the Supreme Court in light of the revelation about Justice
Speaker 1: Clarence Thomas and his relationship with a Republican mega donor,
Speaker 1: and then Justice Alito and his relationship. But the justices
Speaker 1: went off on vacation without doing anything about it. Can
Speaker 1: anything be done if the justices themselves won't adopt a
Speaker 1: code of ethics?
Speaker 4: Well, I believe the Democrats are moving on that front.
Speaker 4: There was a hearing in June before Senator Whitehouse's sub committee,
Speaker 4: and there is a bill in to try to move
Speaker 4: the court towards refusal requirements and other ethical standards. And
Speaker 4: one argument that's made which seems to have a lot
Speaker 4: of validity is twenty at USC for fifty five governs,
Speaker 4: conflicts of interest for all lower federal court judges, including
Speaker 4: magistrate judges and district judges and appellate judges and bankruptcy judges,
Speaker 4: and those judges all have to recuse. There's a conflict.
Speaker 4: But the justices have insisted so far on not having
Speaker 4: that code of conduct or adopting it, and there's real
Speaker 4: concern about that, and so this legislation, I think, would
Speaker 4: impose some requirements, and for example, you could follow complaints
Speaker 4: and then there would be a random five circuit judges
Speaker 4: who would rule on that. I think Republicans have raised
Speaker 4: some questions about separation of powers in that context, because
Speaker 4: they consider the court to be a separate branch. But
Speaker 4: of course there are all kinds of ways in which
Speaker 4: Congress does at least fund the various parts of the
Speaker 4: court system, and so I think there's a feeling that
Speaker 4: the Congress can legislate. And of course, what would be best,
Speaker 4: I think, is if the justices came around to the
Speaker 4: view that they should have similar ethics requirements to those
Speaker 4: imposed on the lower court judges. And I think that
Speaker 4: would be the best solution. But we'll see. I don't
Speaker 4: know that it's going to pass in the House, even
Speaker 4: if it gets through the Senate, but at least it
Speaker 4: is some discussion going on Senate and some legislation, and
Speaker 4: they had I think fairly constructive hearing, but we'll see.
Speaker 1: Thanks Carl. That's Professor Carl Tobias of the University of
Speaker 1: Richmond School of Law. And that's it for this edition
Speaker 1: of The Bloomberg Law Show. Remember you can always get
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