CLE: Is DEI Legal After The Harvard Case?

Chayila Kleist: Well, hello and welcome to this FedSoc Forum Continuing Legal Education webinar call. As a reminder to any attendees that are seeking CLE credit, which I suspect is most of you, we'll be posting a CLE code in the chat box at some time during the presentation. Two things should occur at that time to alert you that the CLE code has been posted. First, you should hear an audible ding, and second, a slide will be posted on the screen noting that the CLE code has been posted to the chat box. Please write this code down as you'll be required to provide it at a later time when completing your certificate of attendance. Okay, with those details sorted, let's hop on in. Welcome to this webinar call today, September 17th, 2024. We're delighted to host a CLE program discussing the question "Is DEI legal after the Harvard case?" My name is Chayila Kleist and I'm an Associate Director of Practice Groups here at the Prejudice Society. As always, please note that all expressions of opinion are those of the experts on today's call as the Federalist Society takes no position on particular legal or public policy issues. Now in the interest of time, we'll keep our introduction of our guests today brief, but if you'd like to know more about any of our speakers, you can access their impressive full bios at fedsoc.org. 

Today we are fortunate to have with us as our moderator, Professor William Jacobson, who's a Clinical Professor of Law and the Director of the Securities Law Clinic at Cornell Law School. Professor Jacobson is also the founder and publisher of a popular website focused on politics and law called "Legal Insurrection" and I'll leave it to him to introduce our panel. A last note and then I'll get off your screens. If you have any questions, please do submit those via the question and answer feature likely found at the bottom of your zoom screen so it'll be accessible when we get to that portion of today's webinar. With that, thank you all for joining us today. Professor Jacobson, the floor is yours.

Prof. William Jacobson: Great, thank you so much. I appreciate the Federalist Society helping us with this. My name is Bill Jacobson. Sorry if I look a little disconcerted, I'm having trouble with my pager. That's a joke for people who follow the news. So I will introduce our panelists in a second, but I did think it was important for people to understand how we got to this program. We got to the program really because Rhode Island recently passed over my objection and one of our panelists' objections, a new rule that required DEI credit in order to fulfill your CLE requirements. So one of your 10 credits now has to be in DEI and they didn't really define what DEI is very clearly, and so I got the thought well through the foundation I run, which is Legal Insurrection Foundation and our Equal Protection Project, equalprotect.org and in consultation with Gio and the one other conservative lawyer in Rhode Island.

So you've got two out of the three on this panel today. Why don't we do our own thing? A lot of people are very unhappy about this, why don't we do our own thing? And so we started to plan that and then the Federalist Society expressed an interest that they thought that was worthwhile also. And so that's how we got to where we are. That's how this program came about. Mutual interest from some lawyers in Rhode Island and from the Federalist Society. My understanding is that there are now 11, I might be a little out of date, 11 states that require a DEI CLE edit plus Rhode Island coming online as of next year. So that's how we got to where we are.

The panelists are Giovanni Cicione, who is a practicing attorney in Rhode Island. He is somebody that I've interacted with a fair amount. He regularly advises governments, bodies and agencies and corporations, but most importantly for our purposes, he's also the chair of the Stephen Hopkins Center for Civil Rights in Rhode Island, which is a pro-liberty entity and group in Rhode Island, and he can certainly tell you more about himself and Nicole Levitt, who I've kind of known online for a while and I'm thrilled to be able to reconnect with her, and she helped us put this together. Nicole is a family law attorney and licensed professional counselor in Philadelphia who specializes in representing clients experiencing domestic violence. She also is very well known and she may not want to talk about it or may not talk about it a lot, but she was one of the heroes of the movement coming out against DEI abuses in employment and went public with some of the documentation she was required to sign at work and received a lot of notoriety, so very brave person we have on the panel. With that, the way we've structured this is Gio is going to talk about how we got to the Students for Fair Admissions decision and what it means. Nicole's going to talk about practical aspects of DEI, be it in the workplace and elsewhere, and then at the end I will talk about where I see this going and where we at the Equal Protection Project see this going in the future post-Students for Fair Admissions. So with that I will turn it over to Gio.

 Giovanni Cicione: Thank you, bill. I appreciate that. And again, thanks to the Federalist Society for having us here today. It's a fascinating topic and not often in a career do you get such a rapidly evolving piece of the law to work on and consider and dig into. So this is an exciting time for those of us who care about civil rights and the Constitution and its application in real world situations for clients or other folks we may advise or work with. So what I'm going to talk about in the beginning here is sort of how we got here. And this may be - I'm going to try to limit the amount of history that we all should know instinctively after one year of law school. And so I'll skip over some cases that we have at the tip of our tongues, but what I'm going to talk about is the case law and evolution of the law on racial preferences generally in the United States. And some of this may not at first seem specific to what we talk about when we talk about DEI programs, diversity equity and inclusion programs, but this case that we're leading towards, Students for Fair Admission Inc v. President and Fellows of Harvard College and it's also Harvard and a second school that were part of that case in North Carolina, and I'm going to refer to that as SFFA for short so I don't have to have to say that mouthful every time. But this has been made the issue front and center and it evolves the case law. The travel of the racial segregation and classification cases have really led over the course of 150 years to this SFFA decision, which is quite important I think in terms of US case law in this area. So to get to SFFA, we need to look back to the constitutional treatment of race generally.

I like the reference people make to the era that they call the So-called second founding of the country. We showed up in 1776, but I think it's fair to say for many Americans they weren't brought into that nation until the post Civil War era. And I think that's a fair assessment and I think there's some important reasons to look at it that way. Now I think there's probably limits to that as well, but we won't get into that discussion probably for today. But the post Civil War era and the reaction of the states, the many states to the dramatic changes that the result of a Civil War brought about really obviously were important on the ground for the people that were affected, that were involved, but also important in terms of the evolution of the court and its role in American society. And there were a number of seminal cases that again you probably are very familiar with that talk about what's permissible under the Constitution in terms of racial classification and treatment of individuals.

Then we'll get to the impact of the 20th century civil rights area. Era, sorry. And those cases that dealt directly with affirmative action coming out of the fifties and sixties, 1950s and sixties. And then finally we will work our way up to the 21st century cases most recently that I guess, and I don't want to give away the ending here, but the cases that attempt to complete the transition to a colorblind legal structure that we are facing today in light of the most recent case law or at least more colorblind and acknowledging that that goal remains a contentious issue in the courts and in society generally, but here we are. So let's start with a quick look back just to sort of place ourselves in time post Civil War, the 14th Amendment in particular, there were a number of civil war amendments, but the 14th Amendment in particular provided that no state shall deny to any person the equal protection under the law.

That's the abbreviated version of the last clause of that amendment. And they call that the "equal protection clause" and intentionally and maybe aspirationally did not reference race directly, but it was quickly interpreted by the courts to mean that the law, and this is a quote from the court, "The law in the states shall be the same for black as for white, that all persons, whether color or white, shall stand equal before the laws of the states." So while they didn't put that language intentionally, didn't put language about race or color into the amendment, clearly everyone knew that that's what we were shooting for. So that being said, the shift, the application of those constitutional amendments didn't yield what we would today certainly consider true equality. And again, sort of on the ground and despite some early nods toward that end, I think we all know and recall again from that first year of law school that in Plessy v. Ferguson in 1896, so again a few decades after the Civil War, the "separate but equal" standard was enshrined and would survive for half a century or so and separate but equal, as I said, is not necessarily what we consider true equality today.

And that became a very important part of our jurisprudence, but clearly something that was not viewed universally as the best solution. So that goes on, as I said for about 50 years. And then we get Brown v. Board of Education actually, which is actually two cases decided in 1953 and 1954 and that sort of brought around the real change towards what we would consider a modern equality doctrine. And again, I'm just quickly going through these, we'll talk about 'em more in a minute, but I just want, again, the timeframes are important. So Brown in the fifties called for the elimination of racial discrimination in public education, and as Justice Roberts recently noted in the decision that we're working towards that principle meant that "Eliminating racial discrimination means eliminating all of it." So we'll talk about what he meant when he said that. It sounds sort of obvious in a vacuum, but clearly given the history it was less obvious than it should have been perhaps. So looking to add some support to the decision in Brown in similar cases and recognizing the desire the nation to codify the goals of the modern civil rights era, we saw the adoption of the Civil Rights Act of 1964 and for our purposes, the key title there is Title VI of that Civil Rights Act. Title VI provides that "No person in the United States shall on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." That last little clause is key for the operational effect of a lot of what we're talking about today. So don't forget the federal financial assistance piece. 

So moving on to a slightly more modern timeframe, at least in my lifetime. In 1978, we see a very important case, Regents of the University of California v. Bakke, which attempted to apply this standard to allow the consideration of race in university admissions, but that was a complicated decision. I'm not really sure how else to describe it. In brief, we had four justices who approved any racial categorization as violative of the 14th Amendment and of Title VI. We had four who sought to create a structure that broadly allowed some categorization on the basis of race. And then one, the deciding vote in this case and the author of the majority opinion was Justice Powell who sought a middle ground and really allowed this decision to come forward. There's interesting history, and I don't want to spend a lot of time on this, but like many Supreme Court cases, there were people who didn't want to see it heard. They were hoping the court would dodge the issue. They were hoping that they wouldn't lose ground one way or the other, but Powell gave them the fifth vote that they needed. But in writing the decision, he sort of sought a middle ground between the two sides, the two four- justice sides.

And actually it's also interesting that again, it was a complicated decision. I think they wrote six separate opinions in the case, and if that tells you how fraught the discussions were in the Supreme Court, I think you'll see why soon enough. Again, I'll get back to the details of that case, but just to finish out the timeline, in 2003 we see Gruder v Bollinger and in that case finally Powell's framework was adopted by a true majority of the Supreme Court. It had sort of become understood as the best of all worst possible solutions maybe, but that case endorsed Justice Powell's view that student body diversity is a compelling state interest and it can justify the use of race in university admissions. So that's where we've been for the last 20 years. Powell's sort of narrowly crafted middle ground was endorsed, but it also interestingly contained the seeds of its own eventual demise. And so there we go into SFFA, which was decided last year in 2023. So the case, like everything we see when it's as fresh as a year ago, it is widely hailed or panned as delivering the end of affirmative action depending on which side you're on and which way you view it. I think that both probably overstate the case, but that's true of most cases, especially with the Supreme Court that throughout our history has sort of been somewhat resistant to deliver change that was more radical than the public would tolerate. So it's not as simple as the media might make you believe. And so that's why we're going to spend a little more time talking about the standards that evolved and eventually got us to SFFA. So back to Plessy again, I'm not going to spend too much time here, but we know the case and the separate but equal standard.

For a fascinating look at this if you want to see more or hear more about the politics and the philosophy of race, you don't have to go far. I'd recommend reading Justice Thomas's concurring opinion in SFFA, which I thought was fascinating. He describes it as "an originalist defense of the colorblind constitution." That's a quote from his concurring opinion. Also interesting to note if you really want to dive deep is the lone dissent of Judge Harlan in Plessy. It was, I guess it was prescient looking back here, it shared Thomas's current view of colorblindness and I think Thomas in particular has an appreciation for dissents that eventually carry the day. That's sort of his stock and trade with the court. If you look back at his history or his career in this case, unfortunately Harlan didn't live to see his eventual victory. It was quite long and coming. But it is important for those who care about the court and how it works over the long view to see that sometimes a lone dissent can a hundred years later have a great impact on the governing institutions of our nation. And where he was sitting a hundred years ago and where we I guess sit today is that the conclusion is the separation - that separation in itself is a form of unacceptable discrimination. And again, it's hard to say these things without sort of commenting. That sort of sounds like an obvious statement, right? Is it really contentious that separating people by race is discriminatory?

 But it depends on how you frame it, I guess. So then we hopped to Brown again some number of years later, "Separate but equal is inherently unequal”, said Brown. And while that also seems quite straightforward and obvious, it took us another 50 years to sort that out. Brown was about education in the years. Soon after that, the sixties and seventies, the court went on to drive home the point that separation are separate but equal is inherently unequal. They struck down laws requiring racial categorization in parks and golf courses sort of neighborhoods generally the redlining cases, businesses generally, buses, trains, juries. I think the one that most people, most non-lawyers may know is the 1967 decision in Loving v. Virginia, applying that standard to interracial marriage. So this was a decision felt throughout society, not just through legal circles. It was very important to many individuals and it really did a lot to bring these issues into the homes of people that were impacted by what might otherwise be considered sort of esoteric legal wrangling. So for our purposes, what's important to understand is that Brown called for a standard of strict scrutiny when looking at racial classification and they put forward a two part tests essentially requiring both a finding that the racial classification furthered a compelling governmental interest and also that it was narrowly tailored. And it's fascinating when you go back and look at these cases and the decisions, the fear or anxiousness around any permitting of racial classification but the justices on both sides of most of these decisions felt like we were, it was fraught with danger anytime you allowed this to happen. So because it's fine when you have, if we were all governed by angels, we wouldn't need government, right? 

If you have somebody who's in charge who agrees with you on what's a fair racial classification, then it's all good, but suddenly you get somebody who has a different view and it's problematic. So they defined a compelling interest in that case as, and again, quoting "Remediating specific identified instances of past discrimination that violated the constitution or statute or avoiding imminent and serious risks to human safety in prison, such as a race riot." So again, they would allow segregation of inmates by race if that was the only solution to a pending act of violence. So these were not casual interests. I think as Justice Roberts put it in his SFFA decision, "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."

And that wasn't his language action that was taken from the 1943 case here, covering, dealing with sort of segregation and separation of Japanese-American citizens. Again, it's something we're probably very familiar with or at least the context of it. But he said Roberts said to override that principle, that principle that these are by their nature odious to a free people, the case has to be most extraordinary, not just extraordinary, but most extraordinary. So that's where we're sitting with Brown. 

And as we get into more where we're heading today, the academic realm, we have a case called Bakke and strict scrutiny, standard becomes a central point of that decision. Just for a little background, Bakke is a 35-year-old NASA engineer who decided to apply to medical school, a very interesting character. He's 35 so he's rejected from two of the schools he applies to explicitly because of his age. They say that given his age, we don't think he's the kind of student that we would admit. And at the time that was permissible, you could actually discriminate based on age, and there was no law that said you couldn't. But he applied to UC Davis Medical School as well. And they didn't deny him on that basis. They denied him apparently on merit. He had good grades, he had good standardized test scores for the med exams. But UC Davis Med School had a two-track admissions process and there were a hundred slots each year. 16 of those were reserved for, let's call it special cases, but Bakke didn't qualify as a special case because he was a white man. And so when you look at the math and the standards, the GPA, the test scores, all the things that he had, he would've qualified if it was a hundred slots as a group, but because 16 were reserved, that dropped him below the qualification line and he was not admitted.

And so he argued in this case that, but for his race, he would've been admitted based on the objective standards that the school otherwise applied, and he pushed this forward. So again, it's a complicated decision. The court was not really unified. Four of the justices thought going back to the quotes we've already talked about, the colorblindness was an insurmountable principle. It was necessary for the operation of a post-Civil war America, but forethought that there had to be a path that was found to permit redress of past institutional wrongs. And I'm oversimplifying here a bit, we only have so much time, but I'm happy to talk about it more if folks have questions about the sort of nuts and bolts of that. So University of California argued that there were four distinct justifications for categorization or for race conscious admission policies. One was reducing the historic deficit of disfavored minorities. Another was remedying the effects of social discrimination. So things that were happening outside the school but would still have a negative impact on its applicants, and increasing the number of doctors working in underserved areas. So in other words, if you admit minority applicants, they may be more likely to work in minority communities who are generally underserved by the medical profession. And then fourth, the school thought that it was valuable to obtain educational benefits that flow from a racially diverse student body. So it would help all the students in the school if there was diversity built into their system of admissions. So Powell, in authoring his decision sort of dispensed with the first three of those justifications as, and again, I'm not going to dive too deep here, but basically dismissed them as some combination of either not compelling or too amorphous to apply practically when a court had to review these things, or simply lacking evidence of efficacy.

That's the one about doctors working in underserved areas, certainly a laudable goal, but I don't think the court, sorry, the university was able to provide any evidence that what they were doing would actually lead to that result. So those three being dismissed, Powell had to pin his ruling on something. And what he did say was that the diversity of the student body was permissible. That was a laudable goal that met the strict scrutiny test and was minimally necessary to get to the place he wanted to be or that the court wanted it to be. So Bakke loses his case and we move on from there. In 2003, we revisit this issue in a very similar sort of fact pattern. And this is Grutter v Bollinger. And again, an admissions case this time the University of Michigan Law School, the court again, as they had in Bakke, and I didn't mention this, but granted deference to the university, the court said that it's not our job, as they will say in many cases where the court doesn't want to be the executive, they don't want to put themselves in the foot of the executive branch or in this case the school administration.

And so they said it's okay to grant deference to a university and its goal of student body diversity. And in this case a majority of justices bent to that deference. And Grutter was decided in favor of the racial classifications for admissions. But importantly, that decision expanded on Powell's rationale. And again, all of these cases contain line after line of concern about what could happen if racial classification goes too far or is used improperly. And so one of the things that the Grutter decision did was to talk about limitations that had maybe been touched on in Bakke but really hadn't been spelled out as standards. And what they said were three sort of key points: schools couldn't establish quotas, numerical quotas, and they could not insulate minority applicants from a competitive admissions process. So they had to be part of a process that included everybody, even though they may be given some plus from their racial classification. And then finally, the schools couldn't set specific percentage targets for diversity in their student body. So it had to be about the individual and the application process, not some number, whether it's the percentage of a particular minority in a region, geographic region, whatever it might be.

Prof. William Jacobson: Sorry, let me just interrupt you because I just got a message. Apparently there's going to be a code going to come up on the screen soon. So if you could wrap up yours and then we'll go on to Nicole and then people could at least get the code so they can say they attended for credit.

 Giovanni Cicione: Okay, I will get us through this, Bill. I apologize. So anyways, these standards were meant to avoid what the court viewed as the great risks, which I've mentioned. They don't want the use of race to devolve into stereotyping and worried that standards that didn't meet these strictures would result in discrimination against applicants who are not in a favorite category. So the gutter opinion held their quoting Bakke, there are serious problems of justice connected with the idea of racial preference itself and that racial classifications however compelling their goals were dangerous. So in that light, they put another standard in one more important standard in Grutter. And that was that at some point any system of racial classification preference had to end. So now we get to the case that we're seeing from last year, and back to Robert's point when he said that "Eliminating racial discrimination means eliminating all of it,"

They approached that from various angles, again, I'm not going to get into the details, but I think the important point can be sort of encapsulated in one quote that Roberts had coming out of rice versus ano, and I apologize for reading the quote, but it's important. One of the principle reasons race is created as forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. So Robert spends a lot of time in that opinion on the subjective nature and standards. Again, courts don't want to get into subjective policymaking, right? They want hard standards. And while they all allowed some deference, Robert seems a bit less convinced that schools were capable of limiting themselves when given that deference than perhaps only the cases did. One footnote I think is fascinating. He takes a jab at the dissenters in the SFFA case who rightly point out that the respondent schools have sorted legacies of racial exclusion, right?

They're saying that Harvard and North Carolina have histories of racial exclusion, but Roberts points out that they don't take the next logical step. And his quote is, such institutions should perhaps be the last ones we allow to make race-based decisions, let alone the accord of deference. In doing so, he closes the decision with a reference to treating people as individuals. That's a key point, but I think it was the quote from Harlan's loan to set in Plessy that really carried the day for SFFA. And again, what Harlan said back a hundred years ago in view of the constitution, "In the eye of the law, there is in this country, no superior dominant ruling class of citizens. There is no caste here. Our constitution is colorblind and neither knows nor tolerates classes among citizens." And I think if you dig into the details, that sort of consistent theme of the opinion is really what carried the deck. So there we go, Bill.

Prof. William Jacobson:

Okay, thank you. And again, if you have questions, put them in the question and answer section and we will get to those at the end. And now I'll turn it over to Nicole.

Nicole Levitt: Hi. So Gio and Bill are the experts here. I'm not really an expert in employment law. I'm someone who got kind of taken into this against my will, but I decided it was something worth pursuing and fighting for in my own case and for other people. After the death of George Floyd, employers across the country suddenly decided to have all these anti-racist trainings for their employers. And many of them were pretty, I'd say egregious in the sense that they would separate people into groups based on race. Those were called affinity groups, and the trainings themselves would be filled with stereotypes and insults against people who were white or people who weren't black and brown. And so it seemed to turn all of the civil rights law that geo so expertly detailed on its head ending racism means ending racism, except now it seems like we're kind of going into all of that again, which was very surprising for a lot of people.

So after the SFFA case, employers were kind of left with what do we do now? Do we scrap our diversity programs because of this case or do we keep them? And now it's time for my obligatory reference to Scylla and Charybdis that I think I've found in every CLE I've ever attended, but employers were kind of caught between two monsters, between a rock and a hard place between promoting diversity and inclusiveness and not singling out one race or group of people for harassment or stereotypes or disparate treatment. So I think it was on the day that this case came out. Andrea Lucas of the EEOC issued a statement that, "Companies seriously err if they evaluate their risk under federal employment law by mistakenly referring to now outdated standards for higher education admissions, which had approved of diversity motivated affirmative action, and today's ruling only heightens these employer's practical risks by reemphasizing the Supreme Court's rejection of diversity, nebulous equity interests or societal discrimination as justifying actions motivated even in part by race, sex, or other protected characteristics. Companies continuing down this path after today may violate federal anti-discrimination laws."

And this EEOC commissioner Andrea Lucas even had a hilarious Twitter exchange with Mark Cuban about this exact issue. Let me find it so I can at least read part of it to you. Mark said, "I've never hired anyone based exclusively on race, gender, religion. I only hire the person that will put my business in the best position to succeed. And yes, race and gender can be a part of the equation. I view diversity as a competitive advantage." So EEOC commissioner Andrea Lucas told him he was dead wrong. She said "EEOC Commissioner here. Unfortunately you're dead wrong on black letter Title VII law. As a general rule, race and sex can even be a motivating factor nor a plus factor, tiebreaker, or tipping point. It's important employers understand the ground rules here." She also basically said that the law firm employers hasn't changed. It's the same as it's always been, but we've found that probably a bit surprising because for so long this stuff had gone by unchallenged and the more egregious DEI programs and these trainings were not challenged until recently.

So what should law firms do? Not law firms, what should employers do regarding DEI? They can still promote those diversity and inclusiveness as values without pinning it down to a specific race, sex, gender, or nationality. That's where they get into trouble. And we've seen lately that there has been a lot of threat of litigation as well as litigation over these issues. For example, in August of 2023, 13 attorneys general sent a letter to Fortune 100 CEOs, which cautioned them on the legal consequences for using race as a factor in hiring and employment. Again, that was already the law, but in this haze, after the death of George Floyd, people were doing that left and right and they were even advertising that they needed a diverse candidate or specifying certain races. There were also employers who were advertising that they were paying based on race, which was always illegal.

We also see that there's been a focus on law firms and medical schools, diversity fellowship programs after being sued by Do No Harm and the American Alliance for Equal Rights, law firms and companies change their eligibility criteria to open application to all candidates and not just minorities in order to get those suits dropped. There have also been changes in policy with the small business administration. They decided to say that race is no longer enough to automatically qualify a business owner as socially disadvantaged, which is a step that was needed to enter the program. Instead, applicants must submit personal narratives to justify socially disadvantaged status. And granted that can still be manipulated so that they're making decisions based on race, but they can't be so open about it, which is a step in the right direction.

DEI programs that state they are exclusively for employees or potential employees of some races but not others, or that exclude men pose more legal risk than those that do not as do programs that appear to consider race or gender in a zero sum way like the college admission scenario addressed in students for fair admissions. But regardless of stated policy, recruiters and hiring managers must understand that even if an employer has articulated aspirational hiring goals aor implemented a diverse protocol, all hiring decisions still must be based on job related factors other than race or gender. If this is not clear, the goals can devolve into unlawful quotas and diverse state protocol can lead to race or gender-based hiring decisions, both of which are unlawful.

The thing that's come to my attention mostly now are the trainings, the diversity trainings and webinars that employers force their employees to go to. There's a case in Pennsylvania right now that's working its way, I think through discovery, De Piero v. Pennsylvania State University, where white teachers, well everybody, all the teachers were given trainings on concepts such as white privilege, white fragility, and implicit bias and critical race theory. And the judge in that case in denying Penn State's motion to dismiss said that those things can contribute positively to nuanced important conversations about how to form a healthy and inclusive working environment. But the way these conversations are carried out in the workplace matters when employers talk about race, any race with a constant drumbeat of essentialist, deterministic and negative language, they risk liability under federal law. And in that case, there was every other day it seemed like there was a training that focused on white privilege, white supremacy, but then saying that if you have white skin, you have white privilege and are part of white supremacist society, they even taught that the English language is a white supremacist language and they subjected DePiero, the plaintiff, to a lot of those trainings, including ones where they were made to hold their breath so they could feel what George Floyd felt like.

In another case, another plaintiff was given the statement, "I own that all white people are racist and I'm not the exception." and was asked to sign that statement in addition to going through all these anti-racist trainings. And that person declined to sign the statement, which is obvious or should be obvious that that would violate the law but it seems like employees across the country were subject to just a collective madness with this stuff where they just disregarded the law and went with diversity as taught by anti-racist trainers. And for a good example of that, if you don't know it already, you can go see Matt Walsh's "Am I Racist", because a lot of the trainings that I've read in these lawsuits are based on those teachings. So the number one thing for I think employers to do is to run these trainings past a lawyer and make sure that they passed legal muster. Don't just assume. And also employers can't assume that because they hire and they outsource this training to a third party, that they're off the hook, that it's just the third party that's presenting this and I didn't know what they were going to say. That's not going to work as a defense either after these employers have a duty to know what's going to be presented in the training and they're going to be held responsible for it. And that's the end of my part of the presentation for now.

Prof. William Jacobson: Great, thank you Nicole. And I see we are getting some questions in the Q&A so that's good, we're going to leave a little time towards the end without running over our hour to answer some questions. So what I wanted to talk about, Gio covered kind of how we got here, and Nicole talked about some real world instances is the sort of thing that we have been focusing on at Equal Protection Project, which is what does SFFA mean? How far does it go? We get a lot of questions about this from the media and elsewhere. So on the one hand you have some people who want to pigeonhole it into an university admissions affirmative action case. And then you have other people, like me, who say, "Well no, it's an equal protection case that just so happened to arise in the university admissions affirmative action context."

And so our point of view, and this is obviously going to end up being litigated and it's discussed a lot in the higher ed press and things like that, is how far do SFFA go? Does it apply for example to scholarships? And so we have challenged 30 plus scholarships that were race exclusive or included racial preferences, and more than half of them have dropped it once we challenged it. Those would be challenges through the Department of Education OCR process. And so we believe it applies to scholarships and the schools are not really fighting very hard on that. There have been some developments in some of the states, the red states, where I think Missouri and a few others where the schools have been told, public universities have been told to stop race-based scholarships. But some have come to that conclusion on their own.

The Iowa Regions universities, which is Iowa State, University of Iowa - and I forget what the third one is - on their own because of the legal challenges by my group and other groups around the country decided to reevaluate their race-based scholarships. And they ended up, I believe, doing away with them. So that's really, I think where the fight is going is how far does students for fair admissions go and does it apply to other sort of things that companies and universities or wherever the equal protection clause applies. So companies could be a different issue, but the Civil Rights Act would apply. So wherever the Civil Rights Act or the Equal Protection Clause applies, how far do Students For Fair Admissions go? And there have been some cases which have discussed that and there's a really important trial that's not getting a lot of attention going on right now.

It started yesterday, which is Students for Fair Admissions v. the US Naval Academy. So I don't know if actually students for fair admissions is the plaintiff, I think it is in that case. So they filed against the military academies who have affirmative action, and that trial started yesterday with the Naval Academy and it will be very interesting to see how that goes. But that's a little different because you'll all probably recall in Students For Fair Admissions, there was a footnote indicating the court was not deciding whether this would apply to the military academies. In their ruling, they didn't say it wasn't, but they didn't say it was. They said basically there are potentially a different set of interest there and that will be resolved later. And so that's going on. Will it apply to the military academies,, would be a big thing. But there have been cases, there was a case out of the Eastern District of Tennessee, Ultima Services v. USDA where there was a successful challenge to a business development program that employed rebuttable presumptions of disadvantage, and we've seen that that's a common tactic that is used. They will have a program meant for disadvantaged students. For example, I'm most familiar with education and they will deem certain racial or ethnic categories to be disadvantaged by definition. And so that was successfully challenged. We have a lawsuit that's pending in the Northern District of New York where we have challenged the New York State Step program. Step program is Science Technology entry program. It's actually a fantastic program. The state of New York gives grants to 56 colleges and universities to have programming for high school and middle school students to get them introduced to science and technology. It's very much in demand. It's mostly a summer program. Problem is if you are black, Hispanic or Native American, you are automatically eligible to apply. But if you are not, which is basically Asian or white, you have to show family economic hardship, so differing standards, and that's what we see a lot of and that's how a lot of, I think schools may try to get around it. And so we have filed that suit on behalf of Asian parents on behalf of their children who otherwise would've been eligible to apply. Doesn't mean they would've gotten the scholarship, but they're not eligible because of their race or ethnicity. So those are the sort of things that we're seeing. There have been other governmental programs, federal programs that have had differing standards of eligibility, mostly based on hardship and notions of underrepresented minorities or historically underrepresented that have been successful, challenging based on students for fair admissions. There have been some that were started before students for fair admissions that have not been successful. The Coalition for TJ case, you probably know a lot about Thomas Jefferson High School that was lost in the Supreme Court refused to take it.

We're waiting for a decision in the Boston Parent Coalition v. Boston City Schools, which was a very innovative way - they weren't necessarily trying to get around SFFA because it hadn't come down yet - but they were trying to get around the prior cases, some of which Gio discussed and the prior law, which pre-existed SFFA. And they came up with a fairly devious, ingenious way of manipulating race and ethnicity in the Boston Elite schools. I think Boston Latin is the equivalent of TJ up in Massachusetts. And what they did is they came up with a zip code plan. So they assigned a superficially race-neutral measure, which is zip codes in order to, a certain percentage of the class would be allocated by zip code. And of course the zip codes corresponded to different races in different parts of the city depending where they live, so that was lost at the trial and court of appeals level. And there they've petitioned for cert. So these race neutral - so not only is it differing standards, differing notions of automatic hardship being litigated, but also concepts of seemingly race neutral measures being used for the purpose of manipulating race - and so that's being heavily litigated as well. And I can't not mention, the Fearless Fund case, which came down in the 11th circuit over the summer, could have a potentially huge impact. Fearless Fund challenged under, I think it was section 1981, which is the Civil Rights Act. 

I can never remember the year, whether it's 1966 or 1866 or 1868, whichever one it was. It's the one that prohibits racial discrimination in contracting. And the same people who were behind the Harvard case using a different entity's name, challenged a grant program through the Fearless Fund that was open only to black female entrepreneurs and were successful on the ground that the court held that constituted contracting and that it was not excused by any First Amendment expressive views that may have been held by Fearless Fund. That was a preliminary injunction granted by the 11th Circuit. The Fearless Fund decided not to try to go to the Supreme Court on that either to challenge the injunction or on the merits. And they were quite frank in their public statements as to why the media feared a bad result. So they're going to try to pigeonhole that case into the unique facts of that case and the 11th Circuit, which is not going to help us in the First Circuit, so they feared how the Supreme Court would come down on that. So that's where things are going. It's the expansion of Students For Fair Admissions, how far can it go and what will it mean for things like scholarships that are not university admissions? I see we're running out of time, but I did want to ask the panelists in the few minutes we have left, one of the questions in there is "How do we encourage diversity of thought rather than diversity of physical characteristics or identity?" I don't know if you have it legally, I dunno if you have any thoughts on that, Gio?

Giovanni Cicione: Well, as I said in the beginning, the case is not as clear cut as some might think given the sort of media's take on it. So the courts certainly left open options for sort of increasing diversity, but you just can't do it through race or I guess in theory through other protected classes or categories. But they point out that if an individual applicant talks about the impact that race had on their life and the challenge that it caused them as they got to the point where they're applying to that school, that is certainly acceptable. We all face challenges stemming from different places and that's formative to our characters. And all of those are acceptable. And I think that whether it's a question of diversity of thought, being one of three conservative lawyers in Rhode Island is certainly challenging from time to time. I don't cry too much about it, but I certainly could point out some disadvantages it causes in practice. So I think that diversity of thought evolves naturally, right? It doesn't require a government mandate to say that thought will be diverse in every applicant pool or every accepted applicant pool. That's what the court wants to get away from. And I think as a society we probably all want to get away from, but I think the sense is that that is something that occurs naturally in a free society.

Nicole Levitt: And I would say if it happened in a training, push back on it to the extent that you can, respectfully just push back and talk about thought versus race and why do you feel that all members of one race think this way or act this way versus members of another race? I definitely think that even if you're the only person willing to stand up, there are going to be other people in the training that feel the same way you do and are just too afraid to say it until you stand up and be the person to challenge it.

 Giovanni Cicione: Freedom is not for the meek.

Prof. William Jacobson: Yep. Question, has the panel heard of commonality training? It is a positive alternative to diversity training. Have anybody heard of that sort of alternative? So I guess perhaps the point of the question is maybe there are alternative types of training rather than Ibram Kendi, anti-racism, whatever the woman's name is who got embarrassed, basically shaming people based on their race. So have people encountered trainings that might accomplish some of the same things without demeaning people?

Nicole Levitt: Heterodox Academy had one. I don't know if they're still doing it. I know I've come across a few other ones and of course now they flew out of my head like a flock of birds but I'm on Twitter and if anyone wants the names, feel free to reach out to me on Twitter @LevittNicole7 and I'd be happy to send them to you. But I'm interested in that commonality program. It sounds good.

Giovanni Cicione: And I would only add Bill, that we have to make sure we think about these things. Not so much in terms of the name of the program or the purported goals of the program. As you said, Rhode Island, and I think other states have mandated DEI training by using those words, but it's very difficult given SFFA and other cases to mandate certain thought. And so the components that Nicole points out that seem to be everywhere when you get into this DEI world can be very problematic, but it is prohibited to mandate compel speech or to mandate things that might affect performance, your compensation, your continued employment around a lot of these topics. So whether it's called diversity or called something else, what we want to get down into is what exactly are they requiring? And I think that this is a wonderful thing. This is the kind of required vagueness that allows us to provide a DEI seminar that qualifies for Bar Association credit despite however much that might stick in the craw of those who advocated for that initially.

Prof. William Jacobson: Okay. One last question, which I'll quickly answer and then we'll move to final comments. "As a 30 year plus year member of Army Reserve component still serving, I'd be interested in the panelists perspective on the military academy litigation, particularly since merit-based admission there is literally a matter of life and death and national security. I'm going to throw out a guess. It's just a guess. I think the people challenging that are going to lose, I think they will be deference given to the military that is not given to the University of Michigan or to Harvard or to University of North Carolina. I just have a feeling, just a gut feeling. I haven't read the briefs, but I have a gut feeling that whether it's good or bad, what they're doing, the courts are going to be very hesitant to second guess it. With that, we have room for like 30 second final comments from each person. Gio, do you have any final thought here?

Giovanni Cicione: Look, I think that question leads to sort of what we're all looking down the road at. What are the next cases? It was interesting that that footnote referenced the military academies, but it didn't reference discrimination on buses or in businesses or all the other things that sort of took 20 years after Brown to percolate through the courts and cases. So I think it's going to be very interesting to see what comes next. It's going to take vigorous action on the part of people who want to advocate for a color blind society, but I think you may be right on that one, but I think there will be a number of other cases that build on SFFA in a positive way.

Nicole Levitt: So what I've tried to demonstrate, I don't know if I did, is that these trainings can constitute a hostile work environment. If you are exposed to trainings and messages from your employer all the time about your race and saying that your race is inferior because of this, or you think you're privileged because of this and it's pervasive enough, that violates the law. So as an employee, you can definitely fight that. And I would say make sure that you keep good records of everything, keep good notes, save the emails and talk to an employment lawyer. And also you can talk to people like Legal Insurrection, Steven Miller has a group and FIRE also is willing to connect you with a lawyer that can help you see if what your employer is doing is violating the law.

Prof. William Jacobson: Okay, great. With that, I think we will wrap it up. I think there might be a closing statement from our sponsor.

Chayila Kleist: Yes, on behalf of the Federalist Society, thank you so much for the benefit of your valuable time and expertise today. Really appreciate our panel joining us. Thanks also to our audience for joining and participating. A last comment on CLE for anyone seeking CLE credit, which again I think is most of you, following the program, you should receive an email, the link to a certificate of attendance form within three business days of this program. That email will go to the email address you used at registration. If you don't receive that email, please feel free to contact us at [email protected], that's [email protected]. We also welcome general listener feedback at [email protected]. Now with that, we can wrap up the program. Feel free to keep an eye on our website and your emails for information about other upcoming virtual events, but this program is adjourned.