Conservatives Step Up Attack on Affirmative Action

process through affirmative action. The multiple efforts to defeat race conscious admissions on several levels, including by Trump's Justice Department, are intended to get an increasingly conservative Supreme Court to rethink its decisions on affirmative action. My guest is Audrey Anderson, who heads the education practice at Bass Barian Sims. She

was the former General counsel of Vanderbilt University. Audrey says, it seems sort incongruous that this legal fight to reverse affirmative action is picking up while the country is in this epic struggle over race. Well, this is a little bit penundrums of where the legal principles are with affirmative accents. The marketing in the streets and Our protests are about

unjust treatment of people based on race. The legal constructs for affirmative action at a college or university are not justified on evening out the inequitable treatment based on race. It's not to remedy past discrimination. So when we as lawyers are thinking about this, the only reason that the Supreme Court has approved consideration of race in university admissions is in order to build a student body that has a certain level of diversity to improve the educational period.

They are not allowed to use race and admissions in order to make up for the hundreds of years of discrimination against black and brown people in the United States. So from a legal perspective, we're almost operating in two different universes, and that's a really hard thing for people to wrap their heads around. Behind the three major suits against Harvard, the University of North Carolina, and the University of Texas is the activists Edward Blum who founded Students

for Fair Admissions. Are they saying that these universities are not complying with established law or are they saying more than that? Well, Jude, I think they're really saying two things. They are saying that Harvard is not complying with the Supreme Court law that says, if you are going to use race in university admissions, you have to do it in a way that is narrowly colored. And Edward Blum says that Harvard is not using race in a way

that is narrowly tailored. But make no mistake. In each one of these cases, they are also arguing that actually the Supreme Court precedents from the University of Michigan cases are wrong, and that actually the proper way to read the Constitution is to say that it does not allow university to be conscious of a race to use race as any kind of a factor in admission. In every one of their briefs they drop a footnote that says, lower Court, we know you can't consider this argument because

it's only for the Supreme Court. But by the way, we think the Supreme Court decisions in the University of Michigan cases are wrong. So Blum's ultimate goal is to get the University of Michigan case overruled by the Supreme Court. That's his ultimate goal in the Harvard case, which is now at the Federal Appeals Court. Asians account for sent of the admitted class at Harvard the plaintiffs said, if judged purely on academics, they would make up of the

admitted class. So do the plaintiffs want everyone to be judged purely on academics, So then Harvard would have a class with Asian Americans. Well, that's one of the problems. We're looking at it this way. Harvard and Yale and Columbia and Stanford, they could completely fill their class a number of times over with students with purple puff boys and a purple cl So it's really just fillingness to say that we're only going to judge students on the

basis of their quote unquote academic merit. What these schools are trying to do, and what the Supreme Court has said they have a First Amendment right to do, is to choose students that they believe are best suited for the institution, and that does not have to be death

based on academic merit. But f f f A and other groups to like them keep trying to say, well, all you should look at is academic merit, because that is quote unquote objective, and any time you put a subjective component into your admissions criteria, you might be discriminating against someone what is the Justice Department's role here? So, in general, the Justice Department has the responsibility to enforce

a federal law that we call Title six. Title six of the Civil Rights Act requires that institutions that receive federal funds cannot discriminate on the basis of rights. So the Department of Justice is in charge of enforcing that law, and it always has been since Trump has been in power. The way that the Department of Justice has decided it needs to enforce Titles fox is to make sure that affirmative action is not being used to discriminate against whites

and Asians. Now, the Justice Department sent Yale University a letter threatening to sue unless Yale agrees to stop considering race. The government said that quote unlawfully dividing Americans into racial and ethnic blocks fosters stereotypes, bitterness and division. Was this letter unusual in any way? So the government, when it's in fourth Entitle six can bring an accent in federal courts to sue an institution to force it to comply

with the law. What they're supposed to do before bert suit is work in good space with the institution to negotiate to get the institution to comply with federal law. So the unusual thing about this letter to Yale was that it didn't go into much detail about exactly how Yale was in violation of the law, what Yale could do to come into compliance short of this not having affirmative action and have kind of a timetabe for Yale

to come into compliance. Rather than just saying, you know, if you don't stop using your affirmative action program in the matter of weeks, we will sue you. Usually they would say you need to consider applications in this way rather than that way, and we'd like to see you institute that change over the next admission cycle, and then we'll take another look at your data, and then we'll talk to you again, and then we'll determine whether we're going to sue. So that's the way the Department of

Justice usually works with institutions. So that was one of the things that was surprising about that letter to Yale. So then, does this indicate a step up in the Trump administration's overlooked of the use of affirmative action in college admissions. Yes, it's a stump up and it's very aggressive. As I was saying that the very short timing. They've been Yale to say we're going to sue to me.

That sets off alarm belt because they're doing it. I think the file suit before the election in case Trump is not elected, and they'll already have that lawsuit going and on the books, and a new bid administration will have to deal with it with a lawsuit taking a position that a BigMan decision probably won't want to take, and they can change their position, but it's just administratively and politically awkward. So the goal seems to be to get this to the Supreme Court. Are they any closer

that goal? Absolutely? I think that the students for Fare Admission has been strategic in the way that they are pursuing this litigation. So the best way to get an issue before the Supreme Court of the United States is to generate what we call a conflict among the circuits. So right now, the Harvard cases before the first Circuit Court of Appeals, they will issue a decision right now, are s f A is going to have a trial happened in the Middle District of North Carolina for the

University of North Carolina. Whatever happens with that suit, it will be appealed to the Fourth Circuit Court of Appeals. Ever loses in the First Circuit with the Harvard case, they will ask the Supreme Court to review it. Supreme Court may review it, they may not. But then we go to the North Carolina case. Whatever happens at trial,

they'll appeal it to the Fourth Circuit. Whatever happens at the Fourth Circuit, whoever loses will go to the Supreme Court, and at that point there will be a decision from the First Circuit. If the Fourth Circuit disagrees with the First Circuit, that's when the Supreme Court should be stepping in. And then the Texas case is in yet another circuit,

in the Fifth Circuit. So Blomb, by kicking these schools in different parts of the country, is trying to set up, I think, a conflict amongst the circuits, which makes it more likely that the Supreme Court will step in. If the Supreme Court steps in, it will be a court with a new conservative majority on it. Is there a concern that the Court might reverse the Michigan decision. Yes, I think there is a concern at will be overruled, or they may don't even have to overrule it. You

might remember that in Rudder. The controlling opinion by Justice O'Connor had language in it that I would call Getta not important to the holding, not part of the holding. But there's language in it that says, we don't expect the need for affirmative action to go on forever. In twenty five years, we won't need it anymore. That was in two thousand and three. So I think that the Supreme Court justice could even try to say, well, we're

not even overruling that precedent. We're just said, as Justice O'Connor presisted, that the need for infirmative action is gone. Now, when somebody says that, I think then the public will say, we'll look at what's been happening in the streets the summer and say, really, I'm not quite sure how you can say the need for affirmative action is gone. Thanks for being the Bloomberg Laws show. Audrey, that's Audrey Anderson of Bass Variance MS. The clash over undocumented immigrants and

the Census is back at the Supreme Court. President Trump lost the fight to add a citizenship question to the census at the Court. His Plan B is an executive order for federal agencies to hand over existing data on undocumented immigrants to the Census Bureau so it can exclude them from its count. Today, I'm here to say we are not backing down on our reffort to determine the citizenship status of the United States population. The problem is that a three judge panel rule the President doesn't have

the authority to do that. So now Trump is back at the Supreme Court to appeal that decision, and the justices have decided to expedite his appeal. My guest is Leon Fresco, a partner at Hollandon Knight. Trump has asked the Supreme Court to let the President exclude undocumented immigrants from the census count. Now, most people thinking about this will say, well, wasn't this settled by the Supreme Court when the court ruled that the administration couldn't ad a

citizenship question to the census. Well, that was a different case. Impact The citizenship question was decided on a procedural issue rather than the substantive decision of whether you could ask

about citizenship in the census. It was decided on the fact that the Bourbon of Commerce the Census Bureau didn't follow the correct procedures in order to add that question so late in the process about citizenship, and that the reasons that the government gave for adding that citizenship question were pretextual because there had been some comments in the record about wanting to add this for purposes of trying

to discount non citizen people from the census. And so one could say, well, maybe that it covers it, but it doesn't exactly cover it, because the issue wasn't decided could you count non citizen people in the census. It was just decide that that the reason that was given, which was supposedly about voting right, was pretextual in light of the comments that had been given about the non citizens issue. So Leon tell us about this three judge panel decision started as a case in the federal disrecord

in New York. But what happens is under the constitution, apportionate cases under the census actually our three judge panel cases. So two circuit judges from the Second Circuit were added to the district judge in New York, and those three judges entered an order that said that the calculation that you would exclude people with undocumented statue from the census was unconstitutional and violated the abortionment clause. My question is

more about the practical aspects of this. How would the Trump administration conclusively determine who's an undocumented status and where

they're living to lower the census count. There are surveys that are done both by the Department of Homeland Security and by the Census Bureau in the American Community Survey that's done on a more frequent basis and the ten year Census basis that are supposed to find out that information and take it into account and try to make estimates as to what is the undocumented population in the country.

But those estimates are not very accurate, and so you could be potentially costing a state, a member of Congress if you are even the inaccurate on an order of magnitude of a few thousand people one way or another. And when we're talking about eleven million people or ten million people or twelve million people, where we don't even know and there's not really any estimates that's firm, there's

not a consensus on the estimate. Some people write these reports that say that there's twenty million people that are undocumented, and that lack of consensus that's out there really makes it very hard to figure out how you deduce people if you don't actually have an objective one for one match in terms of census status. If they do that,

it sounds like it's ripe for challenge. Well correct, and that was the argument actually the administration was making, is well, tell us after the fact, if we actually hurt a states apportionment, then you should challenge our calculation. Don't challenge it now, it's too early. And the second Circuit rejective that argument, saying, look, it's still illegal. So even if nobody was hurt, they're still hurt by having this illegal

policy place upon people. And so we're gonna invalidate it without waiting to see if a particular states counts was hard. As a matter of this, and when is the Census Bureau going to stop its counting? The President is trying to say that there's a sastatory deadline of December thirty earth and because of that, the census should stop counting as of today, and a disrecord in California has actually enjoined that stopping of the count and has scheduled the

stopping of the counts to take till October thirty. Because there's no justification for why they would stop counting earlier than they had originally said. And so the court had enjoined that, and now the federal government is saying, well, we're gonna keep coming till October fifth. And so there was hearing me about whether that contempt of the court ruling and whether that October fifth decision is going to be vacated and whether that will be moved to October thirty.

I against authority to do that. Leon Trump is seeking an argument session in late November or early December. That sets of a possibility that conservative Supreme Court nominee Amy Coney Barrett could be on that panel. Would that make a difference to have one more conservative? Is last time Chief Justice John Roberts was the swing vote, so it was basically conservatives versus liberals. I mean, at this point,

it's hard to predict. It's it's possible that we would have an unprecedented ruling we've never had before, which is that people without science in America, even though the census has count all people, that those people are not people and that they don't count as people. Uh. And usually you don't see those rulings because the Constitution uses the

word citizen. And you know, so there's a difference that when you use the word person or where you use the word citizen and makes that you would use persons when you meant persons, and it would use citizen when it meant citizens. And so that was the idea, and that's how that's been how the Constitution has been interpreted.

So this would be sort of a ground breaking decisions that would deviate from president to say that suddenly people doesn't don't need doesn't mean people being people with some sort of status of the United States, that's comfortised. If this isn't actually even to say don't count a documented people think, don't count people with temporary visas or anything

else like this either. So it seems as if President Trump, you know, during his last election campaign in s he talked about immigration all the time, as he did during most of his presidency immigration the wall. But does it seem as if the topic of immigration is fading into the background a little, It wasn't even mentioned its debates.

I think it depends who the audience is. If the audience is the people being affected by the immigration plans, new immigration plans that are very robot and effect hundreds of thousands of people a day, are issued almost on a weekly basis, So from the administration context, wouldn't say it faded into the background. I would still say it's the front and center regulatory priority of this whiteout. It's the most important thing. It's just a question of the

the news sector. This is the most interesting story of the day. Given that in general COVID is still the biggest story that there is, plus the social unrest, plus the election, people seem to want to talk less about COVID. I'd be sorry less about immigration because COVID has sort of put immigration into the background, both in terms of there isn't necessarily at this moment a very high need for new people to come in the country. There isn't

travel that allowing this. The embassies aren't open for the most part. You know, they are open, but it's it's mattering, and so it's not really something that that as at the forefront because of the COVID issues. Then it will be that it was, and then it will be post COVID.

Point taking leon and to your point, there are new fees that are supposed to come into effect on October two, which would jack up the fees that immigrants pay when they come to the United States and tell us a federal judges blocked that right the last night, a federal judge blocks the new fee rules that would have increased BE pubstantially for certain different categories including naturalization and UH

and filing for temporary visas. And that be was invalidated because they actually ruled that the current Secretary of Homeland Security, Chad Wolf, was improperly appointed as head of Homeland Security, so he did not have authority to promulgate that rules on the feet. And so if that's true, that's can actually affect a lot of different rule that does to be rules. So this is gonna be very interesting as that gets litigated to higher it all the way after

the Supreme Court. Will the Supreme Court find that Chad Wolf was improperly appointed? And I, you know, I think it will be a close case. I don't know that that's a hard is an issue. It seems hyper part has been in the sense that you're asking whether President Trump's appoint the was appointed properly, But it's really just

a technical legal question. And look, if you decide it one way, then that means another administration that you're not ideologically aligned with can do the same thing and find that they can do the same thing. But if you decided in a way that you're validating it, well, that means that other administrations can't do the same thing. But it also means that a lot of policies that were promulgated while Chad Wolf has been as ahead of the

Department of Homeland Security would suddenly be in danger. How much are being hyped? Does it really make a difference to It depends because it's between six hundred dollars and a thousand dollars per applications, and so if you're in a situation where it's a business paying for a worker,

it might not make a huge difference. But if you're in a situation where you're a family of four who came here through either a work program or a refugee program or some other programs, and now you're being asked to pay an additional four thousand dollars per citizenship that you didn't have before, maybe that cost prohibitive and you

don't want to become a citizen at that point. Another proposed rule that I haven't heard very much about is the biometrics immigration rule, So six million would be immigrants would face expanded collection of Irish scans, palm and voice prints, facial recognition, and d n A. What's the stated purpose

of this? Well, I think what had happened was that the biometric collection in the administration had been done in kind of a ad hoc manner and there wasn't sort of an overarching rule that explains, this is what we

wanted to collect and this is why. But from that component, that's perfectly valid, and also there needed to be a couple of clarifications about when you could collect fingerprints from miners who are going through the system, and also what do you do with the shocking amount of people you'd

be surprised who you can't take fingerprints from. There's like, you know, seedier citizens a lot of times for whatever reason, have problems you're getting fingerprints from them, or people who work in construction and who've had damage to their fingers, and so you know, now there's a from that standpoint, you conferensise the ability to get back up biometrics such as Irish scans or facial scans and that kind of thing.

So from that component it's good, but it also lays out very broad guidelines of being able to collect these things. Conceivably in every single case, in for any single purpose that is desired by the Department of Moland Security. And that's where folks are taking But wait a second, is this too broad because of how much how many biometrics that allows people to collect for pretty much any reason that they feel is a justified reason for homeland security purposes.

Almost every time I talked to you, Leon, I have to ask a question about the wall, and I support I think that that is going to play. You know, President Trump is going to emphasize his building of the wall in his campaign. So where does the wall stand and what are the legal challenges to it? Well, the

wall continues to be built quite a pace at this point. Uh. And there's you know, about four miles of wall that's official wall, like kind of President Trump said he was going to build, but only five miles of it are in locations that didn't have some barrier previously. So it just depends whether you want to call that wall or not wall. And so that's in the eye of the beholder.

But there's not a lot of new locations that didn't have a barrier that have this new wall that I think the President would call the kind of wall that he promised, so is it is it still being challenged at the Supreme Court the use of military money to

fund the wall. Well, the Supreme Court has allowed all of these challenges to be saved in the sense that the wall can continue to be built as they go up, but no final determination has been reached about whether the Supreme Court will stop construction of the wall at some point saying that it's illegal. So yes, the circuits have have continued to bring that litigation a pace to say yes,

this is still illegal. But one would suspect that with the composition of the court now, which is by three, and then if it had of Big six three, that there's not gonna be a barrier to the President building the wall, at least with the current litigation that has been filed. There may be at some point pretty soon as they try to put wall in places where there

wasn't wall. Some adverse possession evan in the main type of litigation, But that's different than the litigation we've seen in the pass, which is that the funding has been improperly diverted from the wall. Well, that's the one that's been said and hasn't been allowed to stop the construction of the Wall. Thanks for being on the Bloomberg Law Show. Leon, that's Leon Fresco, a partner at Hollanden Knight. And that's

it for the sedition to the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple podcast, SoundCloud, or a www dot bloomberg dot com slash podcast Slash Law. I'm June Grasso. Thanks so much for listening and remember to change The Bloomberg Law Show every weeknight. Attend and Eastern I hear Humper Radio in mhd h