Litigation Update: Cert Granted in Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC Chapel Hill

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 fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, February 1, we discuss a “Litigation Update: Cert Granted in Students for Fair Admission v Harvard and Students for Fair Admission v. UNC Chapel Hill.” My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

      Today, we are very fortunate to welcome Mr. Will Trachman. Will Trachman is general counsel at Mountain States Legal Foundation, and he was previously the Deputy Assistant Secretary at the Department of Education in the Office for Civil Rights. He’s also a member of The Federalist Society’s Civil Rights Practice Group Executive Committee, and we’re very pleased to welcome him this afternoon.

 

      After our speaker gives his opening remarks, we will turn to audience questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of the program.

 

      With that, thank you for being with us today. Will, the floor is yours.

     

William Trachman:  Thanks so much, Evelyn, and thanks everyone for joining us today. I’m very pleased to be talking today for this litigation update on the Harvard and UNC cases. As you can see from this first slide, I’m Will Trachman. I’m the general counsel of Mountain States Legal Foundation. Previously, I served as the Deputy Assistant Secretary for Policy and Development in the Office for Civil Rights at the U.S. Department of Education. You always know that however long your title is in the bureaucracy, that’s how far down you are in the bureaucracy. I had, I think, three components to my title.

 

      Today, we’re here to talk about some very important cases, perhaps monumental cases, in the history of the country that were just recently granted certiorari in the last week. My firm, the Mountain States Legal Foundation, filed amicus briefs in these cases that are being litigated on behalf of Students for Fair Admission. They present some very interesting constitutional questions that we’re going to talk about, and I’m excited to have you all on the line today to go through them. And do think of your questions so that we can address them at the end.

 

      These cases were originally filed on November 17, 2014. Think about how long these cases have taken to get to this stage, just over seven years between the time they were filed and the time that it took to grant cert. Obviously, given where we are now, it’s going to be another year and a half, probably, before they are resolved in the summer of 2023. Consovy McCarthy is lead counsel. They also have local counsel in Massachusetts and North Carolina.

 

      You can see a photo here. One of the allegations in the case, as many of you are familiar, is that Harvard and UNC discriminate against Asian Americans and that they overuse race as a factor in their admissions policies. But I mostly wanted to flag the filing dates just because we think of these cases when they get to the Supreme Court, but in reality, it takes years and years before these cases actually get to that point.

 

      What was the path to the U.S. Supreme Court? Well, in the Harvard matter, the district court ruled against the Students for Fair Admission. That was appealed to the First Circuit Court of Appeals, which then affirmed the district court. The Students for Fair Admission sought certiorari in February of 2021, so just under a year ago.

 

      In the University of North Carolina case, the district court also ruled against the Students for Fair Admission. That was appealed to the Fourth Circuit. But in contrast to the Harvard case, the Fourth Circuit never actually ruled. The Students for Fair Admission sought a writ of certiorari prior to judgement with the U.S. Supreme Court, and that does occasionally occur. A party is allowed to seek Supreme Court review prior to an appellate court ruling.

 

      Amicus briefs were filed in the Harvard case last March. And amicus briefs were filed in support of the Court granting certiorari prior to the Fourth Circuit review just in December, which was less than two months ago. So things actually moved somewhat quickly in the UNC case in terms of litigation.

 

      I want to talk about some of the amicus briefs that were filed. You can see a screenshot of my organization’s amicus brief from last March on your screen. Mountain States Legal Foundation filed an amicus brief on behalf of my former colleagues at the Office for Civil Rights and the U.S. Department of Education urging the Supreme Court to grant certiorari in that case. We then filed a subsequent brief echoing many of the same ideas in the UNC matter just in December.

 

      We made a couple of arguments in support of the idea that the Supreme Court needed to hear the case. Notably in the petition stage, you aren’t necessarily making all of your merits arguments. You’re making many of the arguments about why the Supreme Court needs to get involved in the issue. So we were making points about why it’s important for the Supreme Court to address many of the issues involved around using race as a factor in both the post-secondary context in admissions and in other areas.

 

      We noted that schools were using race extensively in a host of contexts, not just admissions but also scholarships, that schools experience what we called whiplash between presidential administrations as guidance documents from our former agency, the Office for Civil Rights, were issued. For instance, they were issued by the Bush administration, withdrawn by the Obama administration, to be reissued by the Trump administration, and then withdrawn again by the Biden administration, or vice versa. Maybe they were issued by the Obama administration and then the Trump administration officials withdrew them, and then the Biden administration is already considering or already has reissued them.

 

      Schools are, on the one hand, being encouraged to use race and being told that racial diversity is an important thing to pursue and seek as part of an educational institution, and then that document goes away when a new president is elected. And then maybe that document comes back four years later. And so schools are understandably confused as to what they ought to do.

 

      And at the same time, the hammer of federal funds is always lurking behind the Office for Civil Rights, which has the power to investigate schools, and at the end of the day, if they found a violation of federal civil rights laws, has the power to proceed to enforcement; that is, remove federal funds granted by the Department of Education.

 

      We also noted in our amicus brief that the current case law has a number of ambiguities in it that are certainly exploited by some guidance documents. For instance, we flagged in particular an Obama-era guidance document that states that school can use proxies in order to use race as a factor in both admissions and reducing what they call minority group isolation. And by proxies, I mean items like the Ten Percent Plan or picking ZIP codes that they know will include certain racial demographics in order to avoid actual use of race with individuals.

 

      Catherine Lhamon, who was recently confirmed by the Senate, has been a big proponent of this method and has decided to count the votes in one of the famous cases called Parents United, which is a 2008 case involving minority group isolation and assignment of schools in the Seattle School District. That case is famous because Chief Justice John Roberts famously said in that case, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

 

      But Ms. Lhamon has decided that the four dissenters in that case and Justice Kennedy, who wrote a concurrence, blessed the use of proxy measures to use race and race consciousness in a number of ways through proxies. And so the Obama administration issued guidance saying, “That’s completely fine. You can use proxy measures to get at race as much as you want, as long as it’s for a good reason.”

 

      So that ambiguity is out there. The Trump administration officials withdrew that guidance document, but it’s certainly being considered to be reissued. And then we made the general point that the use of race is expanding and not contracting.

 

      I’ll also point out that there are a number of other terrific organizations filing excellent briefs in support of certiorari, including many of our sister organizations. Many states also filed amicus briefs or joined together and filed amicus briefs. And many of those same players filed also in the UNC case in December of 2021.

 

      I hesitate to flag any particular other amicus briefs just because there were so many great ones. I don’t want to express too much support for some in derogation of others. I do want to flag too, though, one was the Louis D. Brandeis Center, which compared Harvard’s discrimination against Asians currently to the discrimination against Jews in days gone by.

 

      And the other was Professor David Bernstein’s amicus brief, which I found especially compelling because he made that point that when we group racial categories like this, something like 60 percent of the world’s population is Asian, so it’s a little bit silly to start categorizing people by racial groups and then assigning them that way and saying, well, this racial group contributes to diversity, and that racial group doesn’t, or we need a blend of these racial groups, as opposed to treating people like individuals. And so it’s a little bit odd to say this racial group contributes to diversity, but that one doesn’t. I found that especially compelling.

 

      In June, the Court, in response to the Harvard briefing, called for the views of the Solicitor General. The Solicitor General took its time responding to that call and filed its amicus brief in December 2021. One interesting note about that amicus brief is that it said it would be awkward to grant certiorari in the Harvard case.

 

      The Harvard case is not truly an equal protection case. It’s a Title VI case. Title VI is a federal civil rights statute that says those recipients of federal funds, like Harvard and nearly every other public school and private school, post-secondary private school in the country, cannot discriminate on the basis of race. There’s a heightened stare decisis rationale, and that they shouldn’t overturn the Title VI rationale, given that Congress hasn’t done anything to tinker with Bakke, Grutter, or Fisher.

 

      That was interesting because a week later, Mountain States Legal Foundation filed its amicus brief in the UNC petition. So we were able to use the Solicitor General’s argument in the Harvard case as one reason to support granting the UNC petition, to say, look, you should consolidate these cases such that the statutory question is consolidated with the constitutional question to alleviate that heightened stare decisis in the statutory context. So that timing ended up being interesting for the case.

 

      What about the merits? Well, many of you are familiar with how affirmative action cases play out. The term affirmative action generally refers to the use of race in admissions. Originally, these sorts of cases were challenged in case called Defunis v. Odegaard in 1974. That case was ultimately dismissed as moot because the student graduated before the case could be resolved.

 

      But later, the idea of affirmative action was upheld in a case called Bakke v. Regents of the University of California in an interesting split vote. It was a 4-1-4 vote. In that case, Justice Powell wrote an opinion saying that he didn’t think that racial quotas were constitutionally permissible.

 

      And he had this interesting quote that I like to refer back to, which said, “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the constitution forbids.” So that’s just a flat prohibition. You can never achieve discrimination for its own sake. But Justice Powell held open the idea that you could allow race consciousness for other reasons besides just mere preferences for one race. And he extended the idea that maybe diversity was the rationale.

 

      In subsequent affirmative action cases, the Court has essentially codified Justice Powell’s opinion from Bakke. In Grutter in 2003, the Court, in a 5-4 opinion written by then Justice Sandra Day O’Connor, adopted essentially Justice Powell’s rationale. But in a companion case called Gratz, the Court struck down a University of Michigan plan that went just a little too far in considering race. And Justice Breyer, who obviously recently announced his upcoming retirement, even joined that opinion, making it a 6-3 vote, striking down an affirmative action plan that went too far by putting too much of a thumb on the scale on the idea of you can have too much race consciousness in terms of how many points you get for being a certain race or being too close to a quota.

 

      Then, many years later, in 2016 in a 4-3 decision—not a very familiar vote breakdown, but Justice Kagan had recused herself, and Justice Scalia had recently passed, so it was only a 4-3 vote—the Court upheld the University of Texas’s affirmative action plan, again, on the same rationale that diversity was acceptable in order to achieve a compelling interest and satisfy strict scrutiny, which was what originally the Bakke rationale allowed and what Grutter allowed.

 

      Now, I wanted to flag two charts from the Harvard petition that fit into the idea of whether these schools are really scrutinizing what they’re doing in terms of the Bakke, Grutter, and Fisher v. Texas mold because it’s interesting what the Students for Fair Admission are pointing out here. They note that Harvard may say that they are doing very holistic things with their students. They’re analyzing individual students. They’re considering a number of factors that race is a very small part of this process.

 

      But the Students for Fair Admission have pointed out on this chart on the left that that is discordant with the percentages of these racial demographics essentially being the same or within a percentage or two percentages year, after year, after year. So it looks like even if Harvard is purportedly engaging in some individual holistic analysis, it always ends up like a quota. So it’s much closer to what Justice Powell said was impermissible than to what Grutter and Fisher have said is permissible.

 

      And then, in the chart on the right, this is another part of the petition from the Harvard petition last February. This chart’s kind of hard to read unless you’re actually looking at it an understand what all of these numbers mean.

 

      But in this paragraph below it, you can see an Asian American in the fourth lowest decile has virtually no chance of being admitted to Harvard. But an African American in that same decile has a higher chance of admission, so that is 12.8 percent chance of admission, than an Asian American person in the top decile, 12.7 percent. So if you are an African American in the fourth decile, that is, lower down in your scores, you would still have a higher chance of admission than the highest ranking Asian American.

 

      So whether or not Harvard says these are just factors, these are just individual considerations, the numbers bear out something that looks different than that, which is that African Americans have a much greater chance of being admitted based on this data.

 

      Now, there’s a number of requirements that go along with just the idea that you can use race for diversity. All of these have to be part of your affirmative action plan, so the use of race has to be essential to an institution’s mission and stated goals. The diversity has to be broader than racial diversity. As I noted, quotas, and set asides are always impermissible. Schools have to provide individualized consideration to applicants. There can’t be undue burden on other races. There have to be serious good faith considerations of other workable race-neutral alternatives. And you have to periodically review whether you still need to use race in order to do what you’re going to do for diversity, and you have to have a logical endpoint.

 

      Schools will always claim that they do these things. They’ll never confess that they don’t do these things. Occasionally, you’ll find schools that don’t do periodic reviews sufficiently. While I was in the Office for Civil Rights, occasionally there would be a school that failed to do periodic reviews and, thus, didn’t have an appropriate compliance program within their school. But generally, schools will always say, “We’ve thought of other workable race-neutral alternatives, and there aren’t any to achieve racial diversity. And we don’t do a quota. We do holistic admissions, and we consider every student on the basis of a number of factors, and race is just one of them.”

 

      Now, what’s interesting to me about these cases is that in some ways, admissions is sort of a fight from decades ago. We’ve been debating admissions since Defunis v. Odegaard in 1974. This is a fight that’s been going on for almost 50 years, and the fight continues. But really, what’s happened is that race is being used in schools in a number of other ways, and we are kind of stuck with the admissions case law when it comes to strict scrutiny, how courts evaluate what something means when it’s compelling interest, what narrow tailoring means.

 

      One of the things that my former colleagues and I wanted the Supreme Court to do is elaborate. What does it mean for the Supreme Court to say that the use of race is compelling? What does it mean when something is narrowly tailored? Or if they’re going to reach the first question presented in the case, which is whether Grutter ought to be overturned altogether, what does that mean for the rest of the use of race in school?

 

      So toward the end of the Trump administration, the Office for Civil Rights issued guidance saying that it’s inappropriate to assign classwork differently on the basis of race or engage in classroom instruction or training by segregating students or teachers on the basis of race and then giving them different instruction or different training. There are some schools that are now segregating graduation ceremonies by race or living arrangements by race. Some schools, after the COVID-19 closures, opted to at least experiment with reopening differently based on what racial demographics would come first, so maybe Hispanics or African Americans would come first when a school reopened.

 

      We’ve definitely seen rumors that schools will do different operations when it comes to testing conditions, especially after major traumatic events in the community, perhaps in response to a community event that’s especially traumatic that schools may announce, “Okay, if you were traumatized by this event, maybe your testing conditions will be changed, or maybe you’ll have an extension of time, or makeup, or delay on a test.”

 

      And then we’ve also heard of instances where certain racial demographics may be receiving exemptions from medical requirements such as flu shots or vaccines. So in many ways, the answer to the question about whether race can be considered as a factor in admissions is relevant, but it’s also just the tip of the iceberg to many of these other questions.

 

      There are some other interesting legal questions. I thought when the Supreme Court gets at this issue on the merits, it’s going to have to -- or at least possibly, it’s going to have to address some of these questions. The first is an interesting one after the Bostock decision. That’s the decision involving Title VII in 2020 addressing whether homosexual and transgender employees were covered by the protections against sex discrimination in Title VII.

 

      Title VI says schools cannot discriminate on the basis of race. It doesn’t say anything about there being an exception if there’s a compelling government interest satisfied by narrowly tailored means. Courts have merely said, “Well, if your race consciousness plan satisfies the Equal Protection Clause, Congress really meant that it would also satisfy Title VI.” But now that legislative intent is no longer part of Title VII, I’m not sure whether it would also be part of Title VI. So it's possible that there might be daylight between Title VI and the Equal Protection Clause such that private schools like Harvard might actually have less discretion to use race than public schools under Title VI.

 

      Obviously, public schools also are covered by Title VI, so maybe it doesn't matter in that case what the Equal Protection Clause says. It’s just that Title VI covers both private schools and public schools. So Title VI covers both, and that’s the end of the day for affirmative action, regardless of the Equal Protection Clause. Interesting question.

 

      Second, many of you are familiar with the 25 year deadline, which is sort of ambiguous from  Justice O’Connor’s majority opinion in Grutter in 2003. So Justice O’Connor made this reference to the idea that hopefully in 25 years we won’t need -- or by 25 years from now, we won’t need Grutter anymore.

 

      Now, I pointed out to you that this case took over 7 years to get to where we are now, so this is potentially the last case we’ll get to the Supreme Court before 2028, although at this point, lower courts have started dismissing the meaningfulness of Justice O’Connor’s statement, both in the trial court and the First Circuit in the Harvard Case.

 

      Those courts have dismissed away Justice O’Connor’s reference to a 25-year deadline, saying, “You know what, that was not really meaningful. That 25-year deadline is not effective, and it doesn’t have actual power to it, so we’re not really sure what to do with it.” And of course, it doesn’t really have any impact necessarily unless the Court itself is willing to apply it, so it’s not clear what meaning it has currently.

 

      And number three, is there any more middle ground here? So if Grutter isn’t overturned, if race-conscious policies aren’t per se unconstitutional or a per se prohibition under Title VI, is there anything more? I’ve already read to you some of the additional prohibitions like periodic reviews, not having quotas, race-neutral alternatives. Is there anything more that the Supreme Court would add because all of those requirements are already in the mix currently. I’m not sure what else the Supreme Court could add to the mix in terms of middle ground. So it may just be that it’s either time for complete elimination of Grutter, or overturning race-conscious admissions, or preserving what is the status quo, which is Grutter.

 

      With that, I wanted to turn to questions. I see that we have at least one. But Evelyn, do you want to manage the questions as we proceed?

 

Evelyn Hildebrand: Yes, absolutely. And thank you so much for your presentation. That was very interesting. To our audience, if you have any questions, please do enter them in the Q&A tab at the bottom of the screen.

 

      And while people are entering their questions, I wanted to ask a quick question of my own. I wanted to put you on the spot a little bit and ask what you think the Supreme Court is going to do and how you think Justice Breyer’s resignation will affect a possible voting score. An impossible question, but there you go.

 

William Trachman:  Well, I don't know. I don't know what the Supreme Court will do. Obviously, they granted certiorari. I will say that this case -- I alluded to this, but this case will not be heard this term, just the very nature of the briefing at this point. I think the petitioner’s brief is due March 10 currently, but there’s no way that the respondent’s brief, which would then be due after that, and then the Supreme Court would have to hear it and rule by -- it’s just not going to happen. And honestly, what typically happens in cases where the Supreme Court wouldn’t even hear a case until the following term is that extensions occur. So I wouldn’t even be surprised if the petitioners don’t file their brief until April, at least.

 

      By next term, assuming that Justice Breyer’s replacement is confirmed, and that’s an assumption, there would be, I’m going to guess, three votes to affirm. And then the question is are there six votes to reverse, and are there six votes to reverse Grutter? And that’s hard to know. Obviously, it would be a big deal to reverse Grutter. Certainly, that’s -- I think the arguments that we made in our amicus brief is that the Supreme Court needs to address the expanding use of race in schools because Grutter and Fisher are not containing the use of race. If anything, it’s getting worse. And that 25-year deadline that Justice O’Connor mentioned is approaching.

 

      Whether it’s this case or the next one, it’s going to hit soon, and this might be the last opportunity before 2028 for the Supreme Court to get involved. So it’s anyone’s guess. I’m not going to put any bets down, though.

 

Evelyn Hildebrand:  That’s probably wise. Speaking of the Supreme Court’s -- the breakdown of how the justices might or might not go, Charles Sennett (sp) asks, “Will Justice Kagan recuse herself?” And I don't know. That must rely on some information I don't know. Does Justice Kagan have a special relationship to this case that would require that?

 

William Trachman:  No, I don't know Justice Kagan will recuse. She was at Harvard previously, but I don't that think she will recuse here. My guess is that the time since her time there, because she was appointed to the Court over a decade ago, it’s been long enough that she feels that she can rule in this case. She did recuse from the Fisher case because she had worked on it as the Solicitor General before she was confirmed. But I don't think she’ll recuse from either Harvard or UNC.

 

Evelyn Hildebrand:  Great. Another question from Carlos Carpy (sp). He asks, “Could you comment on how we should think about race as an unstable category and how it plays out here?” And he refers to the graph. The race variable is all self-reported. So is the race variable self-reported in the graphs that the petitioners are relying on, or how is that data collected?

 

William Trachman:  I think it is. Don’t quote me, but I think it is self-reported race. I don't know how else they would get it. But I think it’s when you apply, you fill out the box and you say what race you are.

 

      But in terms of unstable race category, if that may be referring also to what I was talking about, the David Bernstein amicus brief where people have -- myancestry.com profile has more than one ancestry to it. It isn’t as though people have one race and we’re all the same skin color. It’s a little bit silly for us all to all be grouped into one of five major races around the world, and then say, okay, for the purpose of college admissions, that’s the bucket that you’re in, given the vast variety of ancestries and skin colors and tones. And then to not only bucket you but then say, okay, your bucket contributes to diversity X much, it’s a little bit counterintuitive and, frankly, confusing to say that that’s part of what is a compelling government interest.

 

Evelyn Hildebrand:  Right, that makes sense. That reminds me, actually, of the litigation following COVID, the relief bill that was challenged frequently in court where there was a great deal of questioning about how different races were defined, and who qualified, and the percentages, and things like that.

 

William Trachman:  The Mountain States Legal Foundation obtained a preliminary injunction against the farmer rancher bill, which said you are only entitled to debt relief for COVID-19 if you are one of the following races. And it’s, of course, absurd to say, okay, well, how much of a race do you need to be before you can obtain debt relief?

 

Evelyn Hildebrand:  Exactly, exactly. Another portion of that question gets to the question of socio-economic breakdown. Does race stand as a proxy for socio-economic breakdown? Could that be used as -- and I think you referred to this in your presentation already, could socio-economic breakdown be a different method for schools to use to come up with a class, a body that is more balanced or more diverse or whatever term a school would like to use in order to build a class?

 

William Trachman:  Yeah, so let’s unpack that. Number one, if a school said, “We want to promote a socio-economic preference, not because we’re trying to gerrymander our racial demographics, but just because we think socio-economic preferences do create diversity,” there’d be no constitutional problem with that.

 

      Now, the question is what if a school said, “Look, We want to do racial stuff. We want to get at having racial quotas or a certain racial demographic mix-up, make-up, but we can’t do it constitutionally, so let’s figure out a way around that. Let’s have a proxy for that. Let’s do socio-economic status,” then it’s really unclear what the law ought to be

 

       I mentioned that there are five justices, one concurring justice and four dissenters in a Supreme Court case from 2008 that seem to say that might be okay, that you can use a proxy even though your true motives behind it are about race. So if you want to go for ZIP codes, for instance, or you want to go for socio-economic status, or you want to go for a Ten Percent Plan, that you can do those things.

 

      That seems strange to me because what if you wanted to engage in invidious race discrimination that way? Like, okay, let’s exclude certain ZIP codes, or let’s exclude the bottom 90 percent. What if you wanted to do that for ill motives? Would that be okay too? It just seems awkward to me that we would allow proxies that way. And so there is some issue about whether that’s okay or not that’s ongoing. That’s the guidance that the Obama administration issued that we withdrew, and the person who issued that guidance is now back in charge of the Office for Civil Rights.

 

Evelyn Hildebrand:  Great. I think that does remind me, I very briefly read the cert petition, and they were discussing, I think it’s California and Michigan who have barred making an admission decision on the basis of race. And California, I think, was using different ZIP codes in order to build, I think it was UCLA, in order to build their student body. But that’s a very interesting question.

 

      Another question from an anonymous attendee who asks if you could discuss whether race may be constitutionally employed at the high school level and lower, from high school and elementary school. And that’s a question I also had. How does this impact education before the college level?

 

William Trachman:  Yeah, so I mentioned Title VI. Title VI applies to every school that receives federal funds, including elementary and secondary schools, so not private schools that don’t receive funds from the Department of Education, but it does apply to all the public schools. And so those schools can’t discriminate on the basis of race.

 

      I’m certainly seeing lawsuits involving Title VI with respect to, for instance, teachers who are forced to -- or segregated for the purpose of teacher training or denied access to affinity groups. I’ve also seen lawsuits involving students who are forced to say that they are privileged, that they have white privilege because of their race. So there are cases involving these race issues at the elementary and secondary level. It is a developing area of law. There are not that many cases at the elementary and secondary level just yet.

 

      I know that there are also complaints. So in my city, the City of Denver, there was a school that posted an advertisement for a playground night for people of color and families of color. And I know that there was a complaint filed recently with the U.S. Department -- with the Office for Civil Rights. I don't know the status of that complaint, but that is ongoing.

 

Evelyn Hildebrand:  Wow, I had not heard that before. Okay, the next question is from Jeffrey Wood. He asks about strict scrutiny. In the U of Michigan case, perhaps in the majority opinion, Justice O’Connor maybe, cited strict scrutiny but then deferred to the education experts and officials of the school, which seems like an odd understanding of strict in theory, fatal in fact. Is it possible with this case that the whole rubric of strict scrutiny will be revisited, and if so, with what result?

 

William Trachman:  It’s a great question. I mentioned the Fisher case. There are actually two Fisher cases. The very first one involved this procedural issue, really, about how strict strict scrutiny needed to be because the lower court had deferred to the University of Texas in terms of whether diversity really was an important educational interest for the school. And the Supreme Court in an 8-1 decision, including Justice Sotomayor, said, “No, no, no. When we said strict scrutiny in Grutter, we really meant it. It’s got to be strict.”

 

      Now, the case came back a few years later, and the Court upheld the University of Texas plan again, 4-3, in Fisher II. But I don’t have any doubt that the current makeup of the Court will say, “We meant what we said in Fisher I. In that 8-1 opinion, strict scrutiny absolutely means that you’ve got to run through all of these traps.”

 

      The three democratically appointed justices don’t have any problem, though, with Fisher I because, despite Fisher I, Fisher II happened. So they’ll say, “Yeah, Fisher I says strict scrutiny is strict scrutiny, but nevertheless, strict scrutiny led to a positive outcome for affirmative action in Fisher II. So we can use strict scrutiny and nevertheless achieve upholding affirmative action.” Again, back to that last slide where I said what middle ground is left, I’m not sure if there’s anything else between complete bans on use of race and what we have currently.

 

Evelyn Hildebrand:  And to follow up on that question then, when the government says that they have the compelling interest, what’s the current state of the law regarding defining compelling state interests? Is it enough for a legislature, administrative body, private entity, etc., can they just say that they have a compelling interest, and does that automatically raise the bar for any litigant challenging it?

 

William Trachman:  Right. We know from that quote in Bakke that favoring one race over another is not a compelling interest. And I think it’s fair to say that just a general idea of remedying past discrimination, like the idea, okay, that we are favoring certain races because they suffered previous discrimination in the past just generally is not sufficient. But in these cases, generally, the compelling interest is going to be the diversity benefits that accompany having a lot of people with different viewpoint in the education space.

 

      Time after time, proponents of affirmative action say it’s really important to have people from different walks of life and different viewpoints in the same space so that they can confront and challenge and talk to each other and present their viewpoints in opposition to each other in a way that makes it sound very appealing.

 

      I question how true to life that really is at the university these days. But if you read the briefs from the proponents -- and I will say, there is going to be a massive, massive amicus effort to support affirmative action and the use of race. I’m thinking probably over 100 amicus briefs in support of Harvard and UNC when this case gets to that point later in the spring or early summer. Those briefs are going to say things like the diversity at the university setting is important, and that’s a compelling interest for the government.

 

Evelyn Hildebrand:  A question actually on the amici area. We have an attendee who asks if any amici argue the entire affirmative action diversity experience has been a failed 50-year social experiment, using the Constitution as a wedge. So I don't know how you’d like to take that question apart.

 

William Trachman:  Yeah. One of the amicus briefs was from Professor Rick Sander, who is a proponent of the mismatch theory. I recommend going to SCOTUSblog and reading the brief.

 

      His theory is that affirmative action ends up boosting certain applicants from racial demographics into schools that they then struggle at. So those students then achieve lower grades, and then I believe they have lower passage rates, for instance, on the bar or lower grades in undergraduate school. So they end up having worse outcomes due to affirmative action than if they had just been matched with the school that, like their peers with other grades or other test scores, they would have gone to.

 

      And so to the questioner who says this is a failed experiment, I would point you to that brief. It says it’s actually to the detriment of the racial demographics that receive a preference to do that because then you put those applicants in the wrong school for them. They end up having worse academic outcomes.

 

Evelyn Hildebrand:  Great. A question -- actually, we’ll just combine these two questions. If the Court does reverse Grutter, would it potentially be impactful beyond school admissions arena? And a specific question on that train of thought, would that change a school’s ability or, really, an organization’s ability to give scholarships to certain minority or racial groups?

 

William Trachman:  Yeah, I absolutely think it might. It depends on how broadly the Supreme Court writes its opinion. For instance, if they wrote an opinion saying, “Race has no place in schools,” for instance, “and that’s why we’re overturning Grutter. And we believe in a colorblind academic environment,” then I could certainly see it having a spillover effect into scholarships.

 

      If you look at previous guidance from my former agency, the Office for Civil Rights, that had guidance in the scholarship context, it often applied the court cases in the admissions context because admissions is really where the education law is in the race space. There isn’t that much law in other contexts. It’s about when schools can use race in the admissions context. So absolutely, it could have that effect.

 

Evelyn Hildebrand:  Do you see it having an effect in other areas beyond the scholarship area?

 

William Trachman:  Potentially. I gave a list of where else schools are using race to draw the point that admissions -- this is a fight that’s been going on a long time. It’s kind of the tip of the iceberg, though. Really, what we’re talking about now is can you engage in race segregation in the classroom or outright discrimination on the basis of race in testing or grading or extending time on assignments. And so it’s possible that if the Supreme Court wrote a really broad opinion that it might have some implications for those sorts of things. The farther away you get from admissions, though, the less likely it is that an opinion would have an effect on those types of issues.

 

Evelyn Hildebrand:  Great. That makes sense. A couple of questions about the argument about the Court itself. Helen Raleigh asks, “The current U.S. Solicitor General Elizabeth Prelogar was a professor at Harvard. Do you think that’s a conflict of interest for her to argue against the Harvard case?”

 

William Trachman:  Well, it’s good to hear a question from Helen. What’s interesting is that the president had to issue a specific waiver in order for Solicitor General Prelogar to represent the United States in this case before the amicus brief was filed on behalf of the United States.

 

      In that waiver, normally, you’re not allowed to represent someone for two years after you’ve been with them, and I believe Ms. Prelogar was an adjunct professor at Harvard. So the waiver says, “This is a case of momentous importance. We need you to argue the case and write the brief.” And then in the amicus brief that was filed in December of 2021, of course, it said, “Don’t take this case. This case -- you don’t need to. This case has been resolved. It’s fine. You can wait for the next one.”

 

      The Students for Fair Admission pointed that out and said, “In the waiver letter, the president said, ‘This is a case of momentous importance. That’s why we need Elizabeth Prelogar on the case.’ And now, you’re saying, ‘No biggie here.’” So that was interesting. But Ms. Prelogar does have a waiver to work on this case, despite it being less than two years since she left Harvard.

 

Evelyn Hildebrand:  Interesting. That’s very ironic. Let’s see, another question from Wayne Paugh, again on the upcoming argument and potential outcomes. In 2007, Chief Justice Roberts stated in the PICS case, which I’m not familiar with, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. And I think you referenced that line. Do you envision Roberts using the opportunity in writing the majority opinion simply ending affirmative action altogether?

 

William Trachman:  Well, that is one possible outcome. Chief Justice Roberts has been on different sides of issues. Obviously, some conservatives and libertarians have seen him as an unreliable vote on a number of issues. On race, though, he has been in favor of colorblindness, that being his most famous quote. It’s hard to know where he’ll come down.

 

      He’s also been a little bit skittish on big votes, and this would be the biggest, potentially the biggest of his career. So if he’s really going to strike down race consciousness in schools, that would be his methodology is reaching back to that 2008 opinion from Parents Involved and reiterating that concept. We are in 2022. By the time this opinion is written, it’ll be 2023. And he could very well say the time to end race discrimination is now. There’s no better time than the present.

 

Evelyn Hildebrand:  Here’s a question from Jeff Wood. He asks if anyone has pointed out Stephen Carter’s Reflections of an Affirmative Action Baby, the different walks of life argument advanced on behalf of racial diversity as a surrogate for viewpoint diversity.

 

William Trachman:  I’m not familiar with that book. I’m just going to infer that the idea that the fact that your race reflects your viewpoints is erroneous, and I completely agree with that. Going back to Professor Bernstein’s argument in his amicus brief, the idea that you can combine American-born African Americans, Jamaicans, black Hispanics, every African person born on the continent of Africa, put them all into one racial demographic, and say, okay, all of these people are black, and therefore, we’ll put them into a bucket together, is absurd.

 

      Obviously, each of those people is an individual, has their own viewpoints on life, contributes to diversity in different ways, and should never be treated as one part of an enormous group of people that has monolithic viewpoints. And so I completely object to that as someone who believes in individuals and individual liberty and freedom.

 

Evelyn Hildebrand:  I see another question. Could you comment on disabilities as a category for admissions? Could this decision have broader ADA impact?

 

William Trachman:  I don’t see how it could. I suppose someone would have to claim that there’s unequal protection violation if a university favored disabled students, but I don’t see how that would be impacted, no matter how broadly the Supreme Court wrote an opinion in this case.

 

Evelyn Hildebrand:  Another question that gets to the amicus briefs. Has any amici represented Appalachian whites and used the diversity affirmative action law to argue in their behalf as a discrete minority that is disadvantaged and discriminated against?

 

William Trachman:  Not that I know of, but as I said, there are going to be some very great amicus efforts. I said the current deadline for the petitioners to file is March 10, which would make amicus briefs due March 17. But like I said, I could see those deadlines getting pushed. For folks who want to file amicus briefs, I’m thinking mid to late spring. If you’ve got folks in Appalachia or otherwise and you want to file an amicus brief on behalf of whatever group, keep those spring deadlines in mind.

 

Evelyn Hildebrand:  Great. We’re getting a lot of questions. I’m scrolling through and reading them. What is the current administration’s position on this? Are they supporting or opposing SFFA? And I believe that you answered that with -- by Ms. Prelogar.

 

William Trachman:  They opposed the certiorari grant. Nevertheless, the Supreme Court granted. They will certainly support affirmance, which is to say they will support Harvard and UNC on the merits.

 

Evelyn Hildebrand:  Let’s see, I think that we’ve answered some of these questions. Another question is -- and I think you got to this comment or this point already on who sets race standards at the Department of Education. I think we’ve discussed that already.

 

William Trachman:  There’s no such thing as a race standard. I think maybe the question is asking about who issues regulations at the Department. Title VI is a congressional statute which broadly says recipients of federal funds can’t engage in race discrimination. But then it authorizes federal agencies to promulgate regulations enforcing that general law. And so the Department of Education has the ability to promulgate regulations.

 

      And the Department of Education does indeed promulgate regulations, and then also enforces those regulations through the Office for Civil Rights. So they investigate schools, both elementary and secondary schools and postsecondary schools who violate those regulations. And you can violate those regulations by engaging in unconstitutional or illegal affirmative action. So those investigations can and did occur during the Trump administration.

 

Evelyn Hildebrand:  Great. Another question, and this gets to beyond the college level again. Do you have any comment on the litigation regarding discrimination against Asian American students in Thomas Jefferson High, which is a public high school in Northern Virginia? That’s ongoing litigation.

 

William Trachman:  No comment. I’m not aware of the status of the case other than I’ve heard of it and I believe Title VI is implicated, and perhaps the Equal Protection Clause.

 

      Certainly, discrimination against Asian Americans, you can see the photo on the slide on the screen with the woman saying, “My race should not hurt me in admissions.” UNC does something specifically which they say, “We offer preferences to underrepresented minorities,” and then they define underrepresented minorities as essentially everyone other than whites and Asians. And so they’ve singled out two races specifically who do not obtain admissions preferences. So it’s not simply Caucasians who are impacted by admissions issues. It’s also Asian Americans.

 

      You saw the chart that’s in the Harvard petition comparing African American applicants to Asian applicants and how different the admission acceptance rates were. It’s often Asian Americans who have the lowest admission rates, despite higher scores. And I saw a quote from Ed Blum, who’s often part of these lawsuits, saying, “What’s amazing is that compared to Asians, Caucasians have a racial preference in some of these schools,” which is -- you’d think that if anyone were going to have a racial preference, it’d wouldn’t be Caucasians. But compared to Asians, they do.

 

Evelyn Hildebrand:  All right, I think this will be our last question because we’re getting nearly on the hour. This asks about standardized testing. And the question is that the SAT, LSAT, etc., standardized testing makes admissions fair and based on the merit. So what would the remedy be if the Court strikes down affirmative action and then universities go to a wholly arbitrary admissions policy, like moving away from standardized testing to a completely arbitrary process? I don’t know if you’d like to comment on that.

 

William Trachman:  That’d be a tough question. If the university said, “Okay, now we have a lottery system, and it’s just pure random chance who gets in,” that would be hard to challenge constitutionally. Now, if they said, “We’d rather have a random lottery because we want to get at a certain racial demographic, and that’s the way that we’re going to get a quota,” then maybe there would be a constitutional challenge on the quota basis. But it would be -- you’d have to take evidence and figure out why they’re doing what they’re doing.

 

Evelyn Hildebrand:  Well, that is pretty nearly all we have time for, but I do want to give you an opportunity for some closing remarks, anything that you didn’t have a chance to already say, and just final closing remarks.

 

William Trachman:  I’d just remind everyone if they want to get involved in the case one way or another that there’ll be opportunities this spring to file amicus briefs and that the case will likely be argued next term with a decision probably late June, possibly early July 2023. So keep posted, follow The Federalist Society. And if you’re interested in learning more about the Mountain States Legal Foundation, my firm, you can go to mslegal.org, and we hope to see you there soon.

 

Evelyn Hildebrand:  Wonderful. Thank you. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. And I want to thank our audience for participating and sending in your questions. I apologize we were not able to get to everyone, but hopefully, every topic was touched upon. Thank you so much for participating and sending in your questions.

 

      We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming webinars. Thank you all for joining us today. We are adjourned. 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.