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