Litigation Update: Faust v. Vilsack - Race Discrimination in the American Rescue Plan

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The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in federal court challenging allegedly unconstitutional race discrimination in the American Rescue Plan’s provision to offer loan forgiveness based on racial categories. The plaintiffs are twelve farmers and ranchers from Wisconsin, Minnesota, South Dakota, Ohio, Missouri, Iowa, Arkansas, Oregon, and Kentucky. Each plaintiff would be eligible for the federal loan forgiveness program, but for their race.  In response, U.S. District Judge William Griesbach issued a temporary restraining order on June 10, 2021 halting payments.  Other cases subsequently resulted in similar orders.

These lawsuits challenge the extent to which the government can prefer one racial group over another based on allegations of generalized societal or industry discrimination.  Prior litigation had addressed allegations of particularized discrimination by the government against black farmers but this more traditional focus on discrimination and tailored remedy was thought by the administration to be inadequate.  How should courts respond?

Rick M. Esenberg, Founder, President, and General Counsel, Wisconsin Institute for Law & Liberty
Devon Westhill, President and General Counsel, Center for Equal Opportunity
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at



Ryan Lacey:  Hello, and welcome to this Federal Society webinar. This afternoon, Tuesday, August 23, 2022, we have a litigation update on Faust v. Vilsack, a case on racial discrimination in the American Rescue Plan. My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our experts on today’s program. Today we are fortunate to have excellent speakers in Rick Esenberg and Devon Westhill, whom I have introduced briefly.


Rick Esenberg is the Founder and current President and General Counsel of the Wisconsin Institute for Law & Liberty. And Devon Westhill is the President and General Counsel at the Center for Equal Opportunity. After our speakers give their remarks, we will turn to you, the audience, for questions. If you have a question, please enter it in the Q&A feature at the bottom of your screen, and we will hand them questions as we can until the end of today’s program. With that, thank you for being with us today. Devon, the floor is yours.


Devon Westhill:  Thank you very much, Ryan, and I think I’ll just talk briefly about how I expect this conversation to go. And I do hope that it will develop into a conversation at the tail end of the program. At the outset, I’ll let everyone know who’s listening -- I’ve already told Rick. He was really, really upset about it, but I do have a hard stop today because my children have started back to school, and I’ve not adjusted my schedule accordingly. So around the 2:40-something mark on the East Coast here, we’re going to have to hang it up. So please get your questions into us as early as you possibly can, that way I can pose them to Rick. Or I can answer them myself, if they’re directed towards me, but so that we can get to all your questions as quickly as we can in the 40 minutes or so that we have.


So what I expect we’ll do is I’ll introduce myself just for a second then turn it over to Rick, who is our main speaker. He’ll introduce himself, I hope, tell us more about his organization that some viewers may not be familiar with, what they’re generally up to, and then, specifically, to go into the Faust v. Vilsack litigation update that he has for us. So, as Ryan suggested, I am Devon Westhill. I run an organization called the Center for Equal Opportunity that has been doing only basically one thing for 30 years -- or has had one mission, and that is to advance color-blind equal opportunity and nondiscrimination in America. So this is squarely within our area of interest, the Faust v. Vilsack case, the entire farmer/rancher loan, really, issues associated with this matter. This is also of a lot of interest to me because immediately prior to my time at CEO, I ran the Civil Rights program at USDA.


And from the earliest days, I’ve heard about the allegations from minority farmers, principally Black farmers, that they’ve been discriminated against in USDA programs, activities, lending for decades. And there have been a number of cases that have attempted to resolve some of these allegations, and the government has issued mea culpa multiply times over those decades. In fact, I was so interested in this that I bought this book, Dispossession, by Pete Daniel, which purports to provide examples of where this discriminatory activity was occurring at USDA and around the country for a number of decades. But with that said, I’ll have some questions and some comments for Rick. Please be thinking about your questions, your comments. But for now, I’m going to turn it over the Rick, and I want to hear from him.


Rick M. Esenberg:  Yeah. I’m Rick Esenberg. I’m President and General Counsel of the Wisconsin Institute for Law & Liberty, or WILL, as we’re often known. WILL is a state-based litigation center that I founded in 2011. We do the panoply of litigation work. We’ve added a think tank component. But towards the end of 2020 and the beginning of 2021, we decided to do something a little bit different. We launched what we call an Equality Under the Law Project. And this was in response to what I perceived as a growing elite consensus that replaced the concept of equal opportunity with something called equity, replaced the concept of nondiscrimination with something called anti-racism, which might very well involve discrimination, and seemed that there was a need for movement litigators to get involved in this.


We decided for the first time that although this case -- and I’m about talk -- talk about today was in Wisconsin, we decided we would take cases outside of Wisconsin. And we have proceeded to do that. And the case that we’re going to talk about today, Faust v. Vilsack, is a -- is an example of the type of thing that -- what we thought needed to be responded to. The law of affirmative action and racial preference has been a mess for a long time, really going back to the Bakke decision in the mid ‘70s, even before then. And oftentimes, that’s been because there have been two competing groups on the Court: one broadly favorable to racial preferences, one broadly hostile to racial preferences. And the controlling opinions have tended to be written by swing justices like Lewis Powell, Sandra Day O’Connor, Anthony Kennedy. They have tended to be opaque, and as a result, so there’s a lot of racial preference.


So we’ve seen this in a college admission context where you could use race in order to get class diversity, but you can’t use it for anything else. But you can’t [inaudible 00:06:23] too far. And all of this provides very little direction and, as a practical matter, covers up for a lot of racialization of decisions about college admissions, decisions about granting of government benefits and contracts. But what we saw in ARPA and -- was a willingness — an unprecedented willingness, really, in some ways — on the behalf of the Biden administration to abandon this opacity and to say, look, we are going to give out government benefits on the basis of race. We’re not going to call it a thumb on the scale. We’re not going to use some type of masking criteria to hide what we’re doing.


And that’s certainly -- we had two cases that were decided about the same time, one in the Sixth Circuit called Vitolo v. Guzman that had to do with restaurant revitalization funds. That did hide a little bit behind the definition of socially disadvantaged under the SBA, but we’ll talk maybe about that a little bit later. I don’t think that really hides what’s going on at all. But this part of ARPA, the farm loan forgiveness program, was a program which was explicitly based on race, and what it said is if you were a member of a certain racial classification and you had debt as of January 1, 2021, your debt would be forgiven. In fact, it was even better than that. It was like a Quicken Loans program where you got cash back. 


One hundred twenty percent of your debt would be forgiven. And you were eligible for this program if you were Black, if you were Hispanic, if you were Native American. If you were none of those things, you were not eligible for the program. Our lead plaintiff in the case, and we had some farmers from really across the upper-Midwest, was a guy named Adam Faust. Adam had debt. Almost all farmers have debt. And he had it because he had purchased a farm from his family.


Adam had grown up on a farm in Crivitz, Wisconsin. Adam is disabled. He’s lost both of his feet, but, nevertheless, he carries on. And he’s got a fair amount of debt. He’s paying it down. But he was ineligible for this program because he is a White male.


We brought a case in the eastern district of Wisconsin in the Green Bay Division. The case was assigned to a judge named William Griesbach. And we sought a temporary restraining order. Our argument was simple. Our argument was that explicit racial preferences have always been subject to strict scrutiny, that we all know that strict scrutiny requires that a program be necessary to access a compelling interest. There had been nothing showing a remedial interest in the blanket conferral of debt forgiveness to African American farmers or other farmers in covered racial groups.


There was no form of disparity study that could justify this. Devon referred to a history of discrimination by USDA against Black farmers, but this case really had nothing to do with that. It was in the backdrop, but a farmer, in order to get loan forgiveness, did not have to show that he or she had been subjected to any discrimination in the past. In fact, a farmer who had entered the -- bought their farm and started to farm in 2020 would have qualified for this debt forgiveness. And given the fact that the Supreme Court is required strict scrutiny, given the fact that the Supreme Court has made clear that something called societal discrimination cannot justify racial preferences -- in other words, at least at this point, our Supreme Court has set itself, I think, against what is this elite consensus around systemic discrimination and equity and anti-racism. We were able to go in and convince Judge Griesbach to issue a temporary restraining order, halting the program. And the program was indeed halted.


There were other cases. PLF, I think, got an injunction down in Florida. The program, as part of the — what are we calling it nowadays? The Inflation Reduction Act, or have we abandoned that name for it? — It was abolished, or it was rescinded in this recent legislation that Congress passed. There are some programs that are taking its place. Some of them are key to finding past discrimination. Although, interestingly, the discrimination can, and must have occurred prior to January 1, 2021, so none of the farmers who might think that they have a claim because of this loan forgiveness program will have a claim against USDA under this particular statute.


There are some other provisions in which I think the devil is in the detail, and we’ll be watching that. And -- but, at least, so far in this case, Faust v. Vilsack, just like our Vitolo v. Guzman case, we were able to get decisions which reaffirm the notion that this type of explicit racial preference isn’t permissible.


Devon Westhill:  Rick, I hope I’m not jumping in too early here, but I’m interested in hearing your response to what potentially will come out during litigation. I think you’re still in the district court, level going back and forth. But the government does, case law bears out, have a compelling interest in remedying past discrimination. There’s three factors basically that have to be shown: a specific episode of discrimination, intentional discrimination, and government was involved, either actively or passively.


Is it your position that the government can come back in subsequent iterations of briefs, in this case, and say, well, look, actually, here is all the evidence that we actually were relying on. We do pass this test put forward in case law. Or, in your view, are they able to overcome that big burden of showing — because it’s permissible to use race as a remedy in certain situations — but can they do it here? It was here. What’s your position? I think your position has to be, no, they can, but I’m just curious.


Rick M. Esenberg:  I think not in this particular case because the program itself -- and we argue that none of these three criterion were met in the case and weren’t met because your eligibility for this race-based preference didn’t turn on your ability to show that you were subject to discrimination, that you could have been subject to discrimination. None of that was necessary. And I don’t think that those issues will sneak back into this particular case because the particular part of ARPA that provided relief here was repealed in the recent Inflation Reduction Act. And, so, we haven’t come to any final decision, but arguably, these cases are now moot. But there is a provision in the Inflation Reduction Act that allocates appropriate funds for the very, very thing that you’re talking about. And we were discussing before we went on the air about additional avenues for future litigation, and I do think that the meaning and scope of these three criteria -- this requirement of specific episodes, if there is such a requirement, of intentional discrimination, and of active — and I think this is the significant word — passive government involvement in these programs.


I think it’s going to be a fruitful area for litigation because -- we have a case called Bruckner now, which is pending down in the middle of district of Florida, which I think has the potential, at least, to raise some of the Croson issues where we’re arguing that this is a ten percent set aside for minority contractors in surface transportation, coding contracts, I think is the term. And we -- there’s no, I think, adequate disparity study done here, but I do think that there are some salient issues about just how close the connection has to be between both past instances of discrimination and the particular person who’s claiming to be benefited by the program. And, so, I think that -- I think there will, particularly with this court, some opportunities for further litigation to clarify and perhaps limit appropriately some of those concepts.


Devon Westhill:  I really appreciate that. It seems we do have a couple of questions, and I’m going to turn to those in just a minute. But I wanted to follow up on something, Rick, that you said. I thought you said that the -- essentially, the ARPA cases are mooted right now because of subsequent legislation.


Rick M. Esenberg:  The farm cases. There are other provisions of ARPA [inaudible 00:17:17], but the farm loan forgiveness -- that program was specifically repealed in the Inflation Reduction Act.


Devon Westhill:  I should have been more specific but the farm cases -- right -- the farmer/rancher cases. I think it’s really interesting. I don’t remember hearing this in your update, but the government did a very unusual thing here when the TRO was issued as well in that they did not contest it. Your thoughts on why that occurred and is this largely gamesmanship, knowing that they get another crack at the [inaudible 00:17:48].


Rick M. Esenberg:  I think they knew they were going to lose. In the Vitolo case -- in the restaurant revitalization case, which was an interesting case because there the government set aside -- set up a 20-billion-dollar fund to provide relief to restaurants impacted by COVID and did so on the basis of race. And although all restaurants could apply for the program, those who were members of certain racial groups and women and veterans had a preference. And once the 28 -- the money was going to be allocated first to the applicants of -- to these preferred applicants, everybody knew that the 28 billion dollars was going to fly out the window. Nobody else was going to get a chance to get any of it, and it was going to happen within about a month. And, so, it wound up being a race down to the courthouse in Chattanooga — that’s not too bad; I like Chattanooga. We were not successful, and we didn’t get a TRO, but we were able to get a preliminary injunction in the Sixth Circuit, albeit by a divided panel.


But there at least they had the opportunity to argue that the situation was a little bit different because they had this concept of social disadvantage under the SBA, which, essentially, says that you have to be subject to racial or ethnic prejudice or cultural bias. Now, everybody -- and that members of certain racial groups are presumed to have been subject to ethnic, racial, or cultural bias. Now, there’s a process to get other people into that category. Nobody is in that other category, and even if they were or they could be, the presumption itself, I think, raises constitutional issues. But I think what was interesting about both of these cases is the government’s willingness to do the very thing -- to try to go beyond the very thing that you very appropriately pointed out that government -- if we look at past cases, government has -- can sometimes establish a compelling interest under certain circumstances.


But they were citing newspaper articles. They were citing things that everybody knows about business failures in the wake of COVID, and I think that the real question is whether the government is going to retreat from that or whether they can find other ways to get at the same thing that will allow them to argue that they not engaged in these explicit racial preferences. And it’s tough, I think, because it would be one thing if the government was willing to allocate these benefits based, for example, on the economic circumstance of the potential beneficiary, so you get your loan forgiven if your farm is below some certain revenue level or has certain other financial characteristics, same thing for your restaurant. But that’s not what they want to do. What they want to do is respond to what they believe is systemic racism in pursuit of equity and anti-racism, and it’s going to be very, very difficult for them to find a satisfactory definition of who is covered and when benefits are available that satisfies their desire to respond to those perceived ills and not simply to provide economic relief to poor folks, which will disproportionately go to minorities because minorities are disproportionately poor, no -- not necessarily a racial preference but one that responds to their economic circumstance.


Devon Westhill:  Rick, I really appreciate that response. I had one follow up. I know we’ve got three questions now, so we’re going to get to them but allow me just this last time. One thing I’ll say is that having been an official at USDA during some of these questions coming up, discharging debt and so and so forth, I think there are some unintended consequences that folks ought to think about before being -- even engaging in a program like that, such as the fact that you could be ineligible to do business again or to get another loan through USDA programs. I’m not sure if you’re familiar with that, and I’m not as familiar as my former colleague, Judge Vaden, so I would prefer to -- he answers questions on that. But there are unintended consequences to these things as well.


One follow up question I wanted to ask — and then we’ll get to our questions — is you indicated that you think the government didn’t contest the TRO, in part, because they knew they were going to lose. Now, there’s going to lose, and then there's going to really lose. There’s some speculation that one of the reasons why the government didn’t want to pursue this is that it could have some impact on other race-consequence regimes, like affirmative action. What’s your take on that? And on the flip side of that, in the cases that you litigated in this space, do you think that the Harvard and UNC cases at the Supreme Court right now — once we know the outcome of those — do you think that’s going to affect your litigation efforts at WILL and equality protection cases such as these?


Rick M. Esenberg:  Well, it’s hard to say until you see the decision, but I said before that the cases are a bit of a mess because of the tendency of the decisions. Sometimes, the decisions that we get out of the Supreme Court are very, very opaque. They’re kind of like my -- they’re sort of country club Republican decisions then in which we -- we’re going to allow some racial preferences to get past, but we don’t want to be radical about it. We don’t want them to go too far. And, so, -- and we certainly don’t want to frighten people by calling attention to precisely what’s going on. And, so, I don’t think that anybody who knows anything about college admissions -- and your organization knows a great deal about college admissions because you’ve done some fantastic studies of what happens, including one at the University of Wisconsin a few years back. Nobody thinks that there’s kind of this prudential and wise balancing that goes on in order to pick just the right class with just the right diversity. The incentive is to get the numbers. Right?


If, in the Harvard and UNC cases, we have a strongly worded and clear repudiation of that concept, I think it’s going to -- it could go -- I think the first thing it could do is really put paid to the notion that you can’t justify these preferences by societal discrimination or, in more contemporary language, something called systemic discrimination, which is generally not defined, usually comes down to simply a lack of balance. And although there are things that it could be that are very, very real, it turns out that they either are not systematic or they’re not racism. And they maybe some other type of ill that needs to be responded to, but they’re not those things. And, so, I think that if the Court does that, there may be litigation opportunities with respect to further defining the fit that is required between these things, like specific episode of discrimination, discriminatory intent, and government involvement, particularly something called passive government involvement. I think that there may be some opportunity to do some litigation and get some rulings that make that fit be a little bit tighter than perhaps it has been in the past.


Devon Westhill:  Thank you so much, Rick, and because it’s my fault that we have to stop a little early, I’m going to stop asking questions and make this discussion more holistic and hear from others who have different ideas and different points of view. So we have a number of questions. Not sure if it’s appropriate to say names here, but -- and I should also -- I always say, Rick, if I ask a question you don’t like, just answer the question you wish was answered. So let me start off here with the first one I see. It’s, “As a conservative university professor, I have a difficult time teaching 18 to 22-year-olds the moral and legal distinction between equity and the equality of opportunity. Any advice on teaching this difference to students told, ‘Equity is the only moral outcome in politics and economics?’” Any thoughts on that, Rick?


Rick M. Esenberg:  Yeah. So -- and maybe I’m too much of an individualist. I think some of my friends on the right might think so, but the problem with equity -- what was the problem, it seems to me -- we have to ask ourselves, “What was the problem? What was the moral force behind the civil rights movement?” And I am old enough to vaguely remember the end of the civil rights movement, and it had great, great, great moral force. And the moral force, I think -- what inherent in the fact that we were not treating people as individuals. We were not judging them based upon on the content of their character. We were judging them based upon the color of their skin.


We were, if you want to get religious about it, we were not treating them as unique individuals created in the image of God. We were treating them as archetypes. We were treating them as members of groups, and that was wrong. And we knew it was wrong. And we persisted in it for way too long, but, ultimately, we had to accept the fact that this was a grave, moral error. And I think, to some extent, equity repeats that grave, moral error in the sense that it says, look, what we need to do right now is not ensure that you, as an African American male, are treated equally and have equal opportunity.


We must ensure that your group, regardless of what happens to you individually, that your group gets its share of the goodies. And, so, we wind up, once again, treating people as archetypes. We’re treating them as racial types and not treating them as individuals, which seems to me was the exact, just sort of the mirror image of the exact moral error that we made in the past. And I just don’t think that there’s a balance aspect, and I don’t think that you make it okay by kind of balancing the score between the two groups. I think what you have to do is do what Chief Justice Roberts said, and that is, “If you want to stop discriminating on the basis of race, stop discriminating on the basis of race.” There’s really no other way to do it and no other prudent way to do it.


Charles Murray has got a pretty controversial book out about racial disparities. I don’t know if he’s right on the statistics, but the one thing that he does say is that we really want to adopt a set of policies, legal doctrines, which encourages White people to think of themselves as a racial group once again because we’ve had that experience in the past, and it did not go well.


Devon Westhill:  Really appreciate that response, Rick, and I’ve got some thoughts on this as well, but I think we should move on to some of our other questions. I think that’s a fantastic answer, and if we get -- have the time, we can circle back. Another great question here, you might take a note on this one. An expert is writing in on this one. “Loan forgiveness is not the only area where USDA currently makes racial distinctions. For example, under a current drought relief program, White farmers received compensation at 60 percent of losses. Also called ‘underserved farmers,’ defined largely as members of racial minority groups are compensated at 90 percent of losses. Are you aware of any efforts to challenge this or other current administrations of USDA race-based benefit programs?”


Rick M. Esenberg:  I’m not aware of any -- I don’t -- I’m not aware of any current effort to challenge that. What I can say is that my colleague, Dan Lennington, and I have a list, and we will work down that list. And I know that the people at PLF have a list, and they will work down that list and other organizations, Southeastern Legal. There are a lot of great organizations that are doing work in this area.


Devon Westhill:  I can only say -- well, I agree with that, but combine notes on those lists and see that we get to everything. So I thank you very much. Another question here. These are longer, so I hope you don’t mind. “What can be done outside of the courts to address this intentional racial discrimination? USDA’s been a particularly bad actor. As I recall a similar case coming in Judge O’Connor’s docket, we can play Whac-A-Mole since the law is on our side. But agencies have no incentive to change their behavior. Wouldn’t it come in the form of civil service reform or perhaps placing personal liability on those who approve of these policies?”


I like this question. I don’t know -- I’m not fully sure how to answer this question. I’ve been asked it many times before. Why would the government be doing such blatant -- what appears to be racial discrimination? Right? They -- where are their lawyers? They can’t possibly think this is okay.


In fact, I don’t think -- I think they know it’s illegal, as this questioner asks or suggests. But, if this is just Whac-A-Mole, they just do as much of this as they can. The small army of litigators — it’s a mighty one — the small army of litigators who are going to take these cases and beat back against this are going to miss some of those moles. 




Devon Westhill:  -- outside the courts.


Rick M. Esenberg:  I suppose if you had the right trifecta, you could pass a law, which precluded this type of thing. Maybe as a way of nonjudicial enforcement, you could mandate some type agency review. You’re always going to run into the problem that agencies — you probably know this better than I do — agencies tend to be captive by the permanent bureaucracy, and it moves very, very slowly. You might want to create incentives for litigators to challenge these things, but I think a great start would be to pass a law that says we’re not -- government-wide, we’re not doing this anymore. But that’s not what the Biden administration did. The Biden administration issued an Executive Order on day one, government-wide, basically saying, yeah, we are going to do this kind of thing. And that’s what we’ve seen.


Devon Westhill:  Well, I might add one other thing there, and I think it’s -- it may be too obvious to even state, but ridicule is actually really helpful. When I go around and talk about these things — doing my public speaking, or in writing or speaking on the radio, whatever — I say these things that sound ridiculous to the average American who opposes these sorts of activities. And when the Biden administration or other government officials or bureaucrats who are working on these activities are confronted with what they really are, they stammer. They stutter. They don’t want to answer the question. They’re evasive. Ensuring that the public knows about these things and the officials who are working on them are appropriately held accountable, I think is an important thing that we should be doing as well.


Rick M. Esenberg:  Right, and that’s why I mentioned earlier the great work that CEO has done, in particular, sort of calling out some of these things. It’s one thing to say that everybody knows that X University is engaged in racial preferences and college admissions. It’s another thing to do the kind of work that your organization has done, which kind of quantifies those odds and shows really how significant the discrimination has become. And as I said, I don’t think that this does any good to the young people that are presumably benefited by it. I think it forces them into circumstances that they’re not ready for, that they would be ready for some day but need a little bit more preparation for. And I think just showing how stark that is is a great public service.


Devon Westhill:  Well, Rick, it’s one of the reasons why we do it, and expect more fantastic studies on the way [inaudible 00:36:52] --


Rick M. Esenberg:  I have no doubt. I have no doubt.


Devon Westhill:  Thank you very much. I think we can take one more question here, and then, Rick, I just want to give you an opportunity to wrap up with any thoughts that you have. I do see two questions left, but they’re from the same person. So let me just ask this first one here, which hopefully sums everything up. “How should we think about the repercussions of the politics involved here? Put differently, take, for example, cost-benefit analysis, which seems to demand a certain level of discretion. Would cases such as this one force the question of, ‘What exactly was analyzed for the passage of this or that law targeting specific subpopulations to create more issues than they solve, or does it just bring to the surface the problems that are already there, more concretely here?’ How well-equipped do you think the Court is to deal with the politicization of cost-benefit analysis or even mass/data for policy making?”


I think one -- I’ll make it even more concrete here and how I understand this, and there’s a suggestion, I think, in this question, or maybe this is the primary question. And that is disparate impact, for example, suggests, based on statistical disparities, that there’s discrimination afoot. Now, under some statutes, of course, disparate impact can be a very strong factor in deciding whether or not actors are going to be liable for some sort of discriminatory program or activities. But in others, it’s really just a factor to help determine whether or not there’s something really nefarious afoot here. Are courts really dealing with the fact that cost-benefit analysis and this sort of statistical data is being politicized for ends like equity of outcome?


Rick M. Esenberg:  Yeah, ever since I was a young lawyer with different colored hair and more of it, I -- and involved in multiple district desegregation litigation, I have always thought that regression analysis was black magic. And courts are not particularly ill-suited to -- or are not well-suited to deal with that type of thing. And we’ve always known that if somebody wants to do a disparity study, it will reach a conclusion that it wants to. And that’s why I think that this opportunity to sort of litigate the specifics and tighten up this fit is very, very important because we’re dealing with potentially dangerous stuff here. And it’s not the case that these very, very real problems are solved by sort of repeating the way that we got to them. We got into them by discrimination. We can’t get out of them by discrimination.


And if that’s true, and we care about treating people based upon the content of their character and not the color of the skin, we can’t allow that to be obfuscated by statistical misdirection. And, so, I think that one of the ways that you deal with that is you limit the circumstances into which those statistics are relevant. And right now, I think we’ve reached your [inaudible 00:40:14] --


Devon Westhill:  I’ve got to go get my kindergartener and then my preschooler, but my kindergartener’s more important there. They’re strict about that.


Rick M. Esenberg:  Yeah, don’t leave them.


Devon Westhill:  Thank you all so much. It’s been a pleasure. Thank you, Rick.


Rick M. Esenberg:  Thank you.


Ryan Lacey:  Yeah. Thank you, both. On behalf of The Federalist Society, I would like to thank our experts for the benefit of their valuable time and expertise today, and I would like to thank our audience for joining us and participating, especially with those great questions. We welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about upcoming webinars and other programming. Thank you all for joining us today. We are adjourned.




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