Episode 30: What Higher Ed Needs to Know About the New Supreme Court


​​​​Just three weeks before the presidential election, hosts Jon Fansmith, Mushtaq Gunja, and Sarah Spreitzer discuss the surprising early voter turnout, higher ed’s response to the Trump administration’s executive order restricting diversity training and federal grants, and the Justice Department’s lawsuit against Yale for its consideration of race in admissions. Later they are joined by Phi Beta Kappa CEO Fred Lawrence to explore how Amy Coney Barrett’s seemingly inevitable confirmation as the next Supreme Court justice will affect colleges and universities on issues such as diversity in admissions policies and immigration.

Here are some of the links and references from this week’s show:

From the Introduction

dotEDU Episode 29: Preparing for the 2020 Election on Campus

Civic Engagement and Democracy: Special Focus on the 2020 Election

ACE, Higher Education Groups Ask White House to Withdraw Executive Order Restricting Diversity Training and Federal Grants

ACE, Yale Decry Department of Justice Lawsuit Claiming Yale Admissions Practices Violate Federal Civil Rights Law

College and University Presidents Respond to COVID-19: 2020 Fall Term Survey

From the conversation with Fred Lawrence

ACE amicus brief opposing the most recent challenge to diversity in admissions policies, Students for Fair Admissions, Inc., v. Harvard


Jon Fansmith: Hello, and welcome to dotEDU, the higher education policy podcast from the American Council on Education. I'm your host, Jon Fansmith, and this episode we'll be talking about what the new Supreme Court might mean for higher education and the election. Unlike the judiciary committee that is meeting this week, we are doing this remotely, and so I am joined remotely by my two esteemed co-hosts, Sarah Spreitzer and Mushtaq Gunja. Hello, guys.

Sarah Spreitzer: Hey, Jon!

Mushtaq Gunja: Hi, Jon!

Jon Fansmith: And while, as I've already referenced, the judiciary committee is having their nomination hearing for Judge Barrett, there are some other things that are going on, and Mushtaq, I know there's a couple of things you've been tracking very closely that I've been hearing a lot about. What's going on with you these days?

Mushtaq Gunja: Well, what I'm mostly doing is just refreshing Twitter every five seconds...

Jon Fansmith: Because you want to be depressed? Is that the ... ?

Mushtaq Gunja: Well, as a law professor, I theoretically should be watching the Supreme Court hearings, but I'm just having a hard time doing that. I think I saw Senator Whitehouse gave a 30-minute statement and asked no questions, and I saw a bit of Senator Graham's opening in which he mostly just attacked Democrats on the Affordable Care Act and also didn't talk about the Supreme Court, so...I've been thinking a lot about the election, about voting on campus, about what our students can be doing. We had a great conversation last time with President Alger of James Madison, and I was very heartened to see a very cool segment on the Today Show this morning...I think it was the Today Show...about an initiative that Princeton students are doing about recruiting poll workers. Because everybody has sort of seen there are enormous needs for poll workers, especially in this age of COVID. So many of our poll workers around the country are elderly people who probably shouldn't be out right now interacting with hundreds of thousands of people, so I think these Princeton students created some sort of app to recruit and assign poll workers around the country. Super cool.

Jon Fansmith: Very cool.

Mushtaq Gunja: Yeah, these are the sorts of things that...There's a community that's talking about, on ACE Engage, sort of all things voting, all things elections, how to get campus students, how to get campus leaders sort of involved. Maybe we can drop a link to it in our show page, on some of the efforts that ACE is engaged in, but really excited about that.

Jon Fansmith: I think ACE is about to launch a new website related to student voting. Is that right?

Mushtaq Gunja: That's right, yeah. If it's not up, it should be up by the time you hear this podcast, and it has great resources for all sorts of people on campus, from college presidents to administrators who are really dealing with the nitty-gritty of elections, voting, and all things related. Very excited about that.

Jon Fansmith: So keep an eye out for that.

Sarah Spreitzer: I can't believe we are three weeks away from the election, but it seems like so far, and yet there's so much early voting going on it seems like it's right here.

Mushtaq Gunja: I think I saw this morning on Twitter 10 million people have already voted in this election.

Sarah Spreitzer: Wow.

Mushtaq Gunja: And then, I don't know if either of you saw those lines in Georgia yesterday. That was the first day of early voting. In a couple of counties, it looked like lines were 11, 12 hours long. God bless those people for standing in those lines and making their voices heard.

Jon Fansmith: You have to admire both the passion and the endurance of people who are doing that, and frankly question why they have to do that, but...different conversation for a different time, I guess. Sarah, what's going on with you? What's happening with you?

Sarah Spreitzer: Well, I guess I was saying this three-week period seems incredibly long because we were just seeing proposed rules and executive orders coming out from the administration so quickly in the lead-up to the election, kind of getting whiplash and getting very, very, very tired of reacting every five minutes to different things, and so ... We saw the EO on combating race and sex stereotyping, and we just sent a letter to the White House expressing our concerns on that, because obviously it would apply to federal contractors, which in some cases includes colleges and universities, and basically says that you can't use certain terms or certain concepts in diversity training if you're receiving federal funding. So that's obviously a big concern to our member institutions.

So, I think that we're still trying to figure it out, because obviously they're still in the middle of implementing it, but for an executive order, they have moved incredibly quickly to implement it. They have a hotline already set up with the Department of Labor. I think agencies are already working to figure out what the EO means, and I think that's all in the lead-up to the election, right?

Jon Fansmith: Right. And we talked about this a little bit before on previous episodes. A lot of this, both the pace and the volume, is purely to get an election message across to their supporters, right?

Mushtaq Gunja: Yeah. And speaking of pace and volume, last Thursday night...I think it was Thursday night...the Department of Ed also sued Yale University.

Sarah Spreitzer: Department of Justice. I think it was the Department of Justice.

Mushtaq Gunja: Oh, it was the Department of Justice, sure. Though I would imagine they're probably working with Department of Ed lawyers, too.

Sarah Spreitzer: Yes, yes.

Mushtaq Gunja: But suing Yale over their affirmative action practices. We'll see how that goes, but that suit was filed in district court in Connecticut. As I understand it, the practices of Yale are very similar to the practices at Harvard, and Harvard won their case in district court. The record there was very strong, so I would imagine that Yale will have a pretty good argument here as well. One wonders if the suit is being filed again, as Jon sort of mentioned, for reasons having to do with politics and sort of getting at the base, but...

Jon Fansmith: Yeah. And I have a feeling we'll be talking to Fred Lawrence a little bit about this subject as well, too.

Mushtaq Gunja: Yes, I think that's probably right. Jon, what are you working on?

Jon Fansmith: I am, much like you and much like Sarah, both whiplash and checking Twitter, because I am working on the supplemental which appears to—

Sarah Spreitzer: How's that going?

Jon Fansmith: It's going great. It's going great. The president, on Tuesday, shut down negotiations. Wednesday night he wanted limited negotiations...Or, sorry, Tuesday night wanted limited negotiations. Wednesday morning he wanted a giant stimulus deal, then he shut them down again. So basically nothing is really happening, but it's exciting, right? Day to day, there's always a change in position and a change in views, and maybe at least the hope of something happening, although realistically, as we pointed out, we're three weeks away from the election.

Even if they can come to an agreement...which, as we speak, seems further and further away than it did last week...they're just running out time. You have to bring members back, you have to write a bill, you have to get agreement not just at the top line, how much money, but all the little pieces of it, how it gets spent out. It's just very hard to do that in a short period of time, and it's really hard to do that in a short period of time when all your members want to be campaigning rather than legislating. Add to that, not a great time for bipartisan cooperation with these hearings going on right now, so, longest of long shots that we'll see anything before the election.

Mushtaq Gunja: Jon, are the two sides talking still? Are Pelosi and Mnuchin talking? Or are they the only ones talking? Has McConnell basically decided to sit this one out?

Jon Fansmith: It's been primarily Pelosi and Mnuchin. And I noticed you pronounce it ‘Mnuchin’. I wonder if I'm mispronouncing it, but I've always said ‘Mnuchin’. Anyway, McConnell has basically sat this out. They consult with the Republicans, he weighs in from time to time. The majority of his members don't want to do another stimulus bill, and he sort of sounds off on that. Interestingly enough, today he announced that they're going to reintroduce a targeted, limited...I don't know what you would call it...supplemental bill that will help certain industries and certain individuals. This isn't really an attempt to negotiate a bigger deal...it's already been clear that the only thing that will happen will be a bigger deal...it's really an attempt to have his members get a vote on something that is politically acceptable to them, that they can send to the house and then say, "Look, we're trying to get relief too, but the house is blocking it." It's really about the appearances. And again, like everything else we're talking about, it's a lot about the election. Where do you position your members as they head to the polls? But, you know, 10 million votes in may be too late for that.

Mushtaq Gunja: Jon, it's really disappointing news, right? I know that the electoral realities are what the electoral realities are, but the view on the ground is that there are many businesses that are hurting, many individuals that are hurting, and certainly our colleges and universities are hurting quite a bit. We just did a Pulse Point survey of college presidents, and they reported the amount of financial pain that they have, the effect that the pandemic has had on enrollment. So there's no question that there is need out in the country and at our schools, and it is really quite a disappointment that the sides haven't been able to come together to pass something.

Jon Fansmith: Yeah, and I've been laughing about the process, because in some ways, it has reached the absurd. But your point is excellent. We know schools are being hammered. That survey pointed out, we asked presidents about what was their top concerns, and top was mental health of their students and staff, but right below that was financial viability...not fundraising, not thanks to the viability of the institutions...and across every category of where revenues are, the overall majority of presidents say their revenues are down. Every area of expenses, their expenses are up. We have estimated at least $120 billion in new costs or losses for schools from this. Congress failing to act since the end of March is a real disappointment, and it's a disappointment that has ramifications. We're already seeing that with declining enrollments at community colleges, enrollments particularly for low-income students, students of color, gains we have made over decades being wiped out by this pandemic, and congress is the only entity that can help right now and they're not doing it.

Sarah Spreitzer: And they have to confirm a Supreme Court justice, so they still have to do that before the election.

Jon Fansmith: At warp speed.

Mushtaq Gunja: They don't have to do it before the election. They are going to do it before the election.

Jon Fansmith: Coronavirus tests be damned, there will be a hearing and a confirmation. But that is a perfect thing to segue into who our guest will be, and I've already teased it out a little bit, but we're going to be joined in just a little bit by Fred Lawrence, who is the secretary and CEO of the Phi Beta Kappa society, as well as a very distinguished legal mind. I'm sure he'll have a few thoughts about this appointment, these hearings, and some other things, particularly how that might impact higher ed.

Before we talk with Fred, I just want to remind listeners, if you have any thoughts about guests or show topics or just wanted to give us feedback on what we're doing well and what we might not be doing as well, please use the podcast@acenet.edu email address to get in touch with us, and hopefully, if you have a great suggestion, we'll be using that in a future episode. So let's take a short break now, and we'll be back with Fred Lawrence.

And welcome back! Today we are joined by Fred Lawrence, who is the secretary and CEO of the Phi Beta Kappa society, in addition to being a distinguished lecturer at Georgetown Law Center, where he teaches courses related to higher education and the law. If you don't know him from either of those two contexts, you might also know him as the former president of Brandeis University. Fred, you are a multi-talented, many-accomplished man and we're very happy to have you join us here today.

Fred Lawrence: It's a pleasure to be with you all.

Jon Fansmith: Well, great. And I should have mentioned, as I was talking about your accomplishments, that you're known as one of the nation's leading experts on civil rights, free expression, and bias crime. I have a feeling some of that may come up in our discussions as well, but just very happy to have you here today.

Fred Lawrence: Good to be with you.

Sarah Spreitzer: I'll kick us off with the first question. We were talking a bit before we recorded about the confirmation hearings happening this week with Judge Barrett. Can you walk us through that hearing, and talk a bit about issues or topics that Judge Barrett may touch on that are of specific interest to institutions of higher education?

Fred Lawrence: The hearings, to a large extent, are really taking place not so much directed at the nominee herself, but really over her shoulder at a much broader audience. The Republicans are trying to bolster her credentials, the Democrats are questioning the whole process of appointing somebody during this time. We keep referring to this as the last days before the election, but in fact, we're well into the election. We call November 3rd Election Day; I think we ought to have another name for it. Something like nine million people have already voted in, I think as many as 40 states right now. I just voted myself, just put my ballots in the box here in Washington, DC. So the election is well on, and the idea of actually having a confirmation hearing during that time is, to say the very least, most unusual. So a lot of the questions really are going beyond that.

But I do think there are a number of issues that, whether they'll come up in the hearing or not, are ones that will predictably come up in the coming years...in some cases, coming year...before this court, and I'm assuming for right now that Judge Barrett is going to be confirmed, that she'll be seated as the ninth and junior justice on the court, and will be sitting with the court within the next few weeks. So we should anticipate that the October 2021 term, which started a week ago, will include nine justices, including Amy Coney Barrett. That's what we ought to be thinking about.

Sarah Spreitzer: So, at this point, I guess the confirmation is considered inevitable?

Fred Lawrence: I think so, just in terms of the numbers. I don't really think that we have a process that is designed to influence people. There are two Republican senators who have said that they were opposed in principle to the process at this time; that is Senator Collins from Maine and Senator Murkowski from Alaska. Assuming that those translate into no votes or extensions...they may not, by the way, but assuming that they do...that would still leave 51 Republicans, and the assumption is that all 51 will vote to confirm. And if that is true, then they've got the votes to confirm. And I think you'll see the same thing happen in the judiciary committee itself. There will be a lot of questions, and there will be a lot of testimony, and when it's all done I would anticipate a party line vote, and the party in power gets to decide that.

Just to put this back into historical context, this is because we have abandoned the use of the filibuster in judicial nominees. Once upon a time, and not all that very long ago, it required at least 60 votes to advance a nomination. Now, that had the virtue of tending to push nominees more towards the center; it had the disadvantage of 41 senators could hold up much of anything. So we're in a world now where 51 senators can confirm someone for life tenure, and right now there are 53 Republicans. Take away two, still leaves you 51. So I can't guarantee anything, but that is the smart money right now.

Sarah Spreitzer: So, Fred, if her confirmation is inevitable, what does that mean for the overall makeup of the Supreme Court, especially losing Justice Ginsburg? What does that mean for how the court may swing in future decisions?

Fred Lawrence: It has a dramatic impact on the court. The court up until how has had a block of four moderate liberals, or liberals we would call them relative to the rest of the court, several very, very strong conservatives...that's Justices Thomas and Alito...and then a block that you could call sort of moderate conservatives who tended to go back and forth. That is how we got a little bit of coalition breakdown. It wasn't just the five conservatives and the four more liberals, but Chief Justice Roberts often joined those four liberals; the liberals, of course, being the late Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan. So, when you remove Justice Ginsburg and you add a Justice Barrett, for the sake of argument, then what you do for the first time in our lifetime...and actually, you would have to go back to pretty early in the 20th Century to find a court this conservative...is you actually move the center of the court to well right of center.

You now have three liberal justices...and the reason I'm pausing on that is that, by some measures, Justice Breyer is really sort of a moderate liberal, but we'll call him a liberal for now, along with Justices Sotomayor and Kagan. Then you've got the Chief Justice Roberts, who is a conservative by any measure, and he is no longer even in the center of the court. And then to his right, you'll have the other five justices. So you'll have as conservative a court as we have seen in our lifetime, anchored by what appears to be three very, very conservative justices...that would be Thomas, Alito, and the new Justice Barrett...and then Justices Kavanaugh and the Chief Justice are center right, or so rightward leaning, so that you really do have as strong a conservative block in this court as we have seen since...well, here's an easy date...since the New Deal, and since Franklin Roosevelt began to build his court in the early 1930s.

Mushtaq Gunja: And that has implications not just for the cases that will be decided by the court, but also the cases that are taken up by the court in the first place, right? So the cert process could dramatically be impacted...?

Jon Fansmith: Just to be clear, when you say ‘cert process’, for the people who may not know, that is the process by which the court decides which cases they're going to hear.

Fred Lawrence: Yeah, it's called a Writ of Certiorari. That's the official term for when the court decides whether to take a case or not. Unlike most intermediate courts of appeals, which have to take cases on appeal, the Supreme Court is what is called a discretionary appellate jurisdiction, and for virtually all of their cases, they decide what they do and don't want to take. The process is they get hundreds and hundreds and hundreds of cases, sometimes thousands to consider, and they look at these, and if four of the nine justices vote to hear the case, then they hear it. It is a very complicated strategic process as to whether or not you do that. It's four justices who think there's a reason to take a case. Sometimes it's four justices who think they can pick off a fifth vote to accomplish something, but sometimes it's four justices or more...five, six, seven...who say, "Yes, it's really time for us to decide this."

When you add a new justice, you change that. The truth is, we should take a step back and talk about how everything really changes. It was famously observed that when a new justice comes on, it doesn't just change that justice's relationship with each of the existing eight justices, it really changes every relationship on the court. Because the way in which they influence each other, the way they work with each other...I remember one time, a case that I was involved in, there was a question that Justice O'Connor asked...This is a case in the early 1990s. Justice O'Connor asked a question, and you can only describe it is that she got a very bad answer, and it was a bad answer from the person I was working with, so this is full disclosure here. This was a major hate crimes case that came before the court in 1994, Wisconsin against Mitchell. Jim Doyle, later Governor of Wisconsin, then Attorney General of Wisconsin was arguing the case. Justice O'Connor asked an important question. Jim Doyle, I think he would be the first one to say it was kind of a swing and a miss. He kind of missed it. Justice Souter then asked a follow-up question, and it was clear to everybody in the room that what he was trying to do was get a better answer to O'Connor's question. And if there was any doubt about it, you had to see Doyle with a light bulb going off over his head, and looking squarely at Justice O'Connor, he answers the question that Justice Souter just asked.

This is the way they relate to each other and influence each other. So when she comes on the court, that changes the way everybody else influences everybody else. And just to state it one more time, we have been talking a lot about Ruth Bader Ginsburg, but losing her influence on the bench is an enormous influence. And not just the obvious, not just the influence that she had on Breyer, who was her contemporary on the court, and Sotomayor and Kagan, who were sort of protegees, in a sense, but her influence on the chief, and her influence on the more conservative justices, just because of the stature and the person she was. You remove her from the equation, you put in a brand new justice, Amy Coney Barrett, you change everything.

Mushtaq Gunja: One of the issues certainly coming before the court, and coming before the court soon, is this question of the Affordable Care Act. The Democrats yesterday...this is Monday...had sort of an incredible message discipline around the Affordable Care Act, kept coming back to this question about how Judge Barrett/Justice Barrett rule on this case would, and this question of the Affordable Care Act has pretty significant implications for our colleges and universities. How do you see that case coming about? How do you see it?

Fred Lawrence: Let me give you two answers to that. The first is the most likely answer, the sort of straight-down-the-middle of the answer, and then I'm going to give you sort of a surmise of something that could happen. But the down-the-middle answer goes like this. The Affordable Care Act has been upheld by the court before by a 5-4 vote. Chief Justice Roberts famously wrote the opinion, he joined the four liberal members of the court, that major block of five. That's how the Affordable Care Act was upheld. Now, as we just said a moment ago, when you remove Ginsburg, you add Barrett, the chief is no longer at the center of the court. The chief is now to the, if you will, the left of center of the court, even though it's a funny term to use because he's quite conservative himself. You now arguably have five votes. You arguably have five votes to strike down the Affordable Care Act. You have got the remaining four who voted in the first place, the first time through, to strike down the Affordable Care Act, and then you add Justice Barrett, who of course hasn't ruled on it per se, but she has written about it, and she has expressed enormous doubt in the constitutionality of the Affordable Care Act, and criticized the Chief Justice in very stark, pointed terms for his opinion that originally upheld it. That basis for upholding the constitutionality of the Affordable Care Act turned on the taxing authority, questioned in the case now coming up to the court is that when the taxing authority was rescinded by Congress, does that deprive the law of its constitutionality. And to the extent it does, there's something called a severability clause. A severability clause is part of a statute that says if part of the statute fails, the rest of the statute remains intact.

So, what happens when a new block of five conservative justices arguably would find that the law is unconstitutional? And I think right now that is the most likely result. Then the question is, what will they do on severability? I think right now the most likely answer is that it is struck down. That is my down-the-middle answer.

Now let me give you a surmisal answer. John Roberts cares deeply about the institution of the Supreme Court, and the legitimacy of the institution of the Supreme Court. There are those who suggest that is one of the reasons that he has played a very interesting kind of swing role the last couple of years since Justice Kennedy left the court and was replaced by Justice Kavanaugh. It is possible that Justice Roberts, looking at this situation...and let me add a couple of other surmises to this now. Let's assume for the sake of argument that Joe Biden wins for president, and let's even further assume for the sake of argument that the Democrats take the Senate. If those things happen, then you've got an electorate that is clearly moved to the left from where it was in 2016 certainly, and even 2018 because you still have a Republican president at that point. It is possible that the chief justice will see the risk of the Supreme Court being, as it were, sideways of the nation on what has to be one of the most momentous legal issues that will be decided over the next few years. So what actually happens in front of us, while we're watching oral argument? Nothing. What happens back behind the curtain, where they talk to each other? One imagines the chief working those holes and saying, "The legitimacy of the court requires us to leave this to the legislative branch. If Congress wants to overturn it, let Congress overturn it. They just got elected; let them do their business."

Now, we just said in terms of the arithmetic, you've got three liberals left, you've got the chief. Three plus one is four. And as the late Justice William Brennan used to say, the rule of this court is the rule of five. I need five votes to accomplish anything. So the chief knows that rule, too. He's got to pick off a fifth vote. Who's the fifth vote for that? My bet is Brett Kavanaugh. Brett Kavanaugh is not a libertarian. Brett Kavanaugh is kind of a statist conservative, and Brett Kavanaugh might plausibly go along with the chief to say, "We owe it to the institution of the court not to put the court sideways of the entire nation." So that is my surmisal; that you could get an ironic 5-4 either upholding the Affordable Care Act or...final word on this...5-4 with Kavanaugh in the middle saying it's unconstitutional, but Kavanaugh writes a separate opinion on the severability clause, and therefore it's upheld, and Brett Kavanaugh establishes himself the center of the court; something I think he would very much like to do.

Jon Fansmith: Can I ask, do you think those betting odds are as good as the odds of Judge Barrett getting confirmed?

Fred Lawrence: No, I don't think there are many things that are as good as a bet as Judge Barrett getting confirmed, but fortunately I'm not a betting man, so this is all a hypothetical discussion for me.

Jon Fansmith: Well, you had me convinced anyway, so ...

Mushtaq Gunja: Fred, speaking of 5-4 decisions, one other topic that I think is likely to come before the court in the next couple of years...especially given what we have seen vis-a-vis the department of Ed and Harvard and Yale...is this question about affirmative action. How do you see affirmative action sort of playing out with this new makeup of the court? It has been a few years since the court has taken it up. I think, since the last time the court took up this issue, Justice Gorsuch, Justice Kavanaugh, now Judge/Justice Barrett will be on the court—

Fred Lawrence: My prediction on this one is that affirmative action is living through its last days, and I say this with great regret, both because of my own personal views about the importance of affirmative action, but also from the point of view of academic freedom and the right of universities to run their own institutions. Let me come back to that piece in a second. Let's do a little more judicial arithmetic and count some justices. The last time the court took up affirmative action was in the second go-round of the Fisher case; that was the case involving the University of Texas. The case came up to the Supreme Court on the question of whether or not it requires strict scrutiny to take race into account. Strict scrutiny is the highest level of review that the court looks at, requires a compelling state interest, and there would be no other way of accomplishing the legitimate compelling state goal other than to take race into account, to a certain extent. The court in Fisher one said it could be a legitimate state interest but sent it back down to the district court. District court came back up arguing as to why they felt that it had met the strict scrutiny standard, and in an unusual 4-3 opinion...only four to three because Justice Scalia had passed away, that leaves one vacancy, and Justice Kagan, that Fisher case had been around so long that Justice Kagan was solicitor general when it started, so she had to recuse herself. So with only seven justices sitting on it, 4 to 3, the court upheld the University of Texas plan.

How did we get from seven justices back to nine? Well, depends what year we're talking about. It's four to three. Justice Kagan would assume to have joined that four in the next case where she's not recused. That's five to three. And Merrick Garland becomes Justice Garland, and then it's six to three to support affirmative action. And in 2016, if we were doing this podcast then, that's what we would have said, but that's a long time ago, four years ago. Of course, Merrick Garland does not go on the court. Instead, it's Judge Gorsuch. So now it's not 6-3, now it would be 5-4. And now Justice Ginsburg is gone, and she's replaced by Amy Coney Barrett, who is an opponent of affirmative action, and in all likelihood you have at least five votes...possibly six, because when Kavanaugh replaces Kennedy, you have the same move. Justice Kennedy wrote a Fisher two opinion in 2016. So you replace Kennedy with Kavanaugh, you replace Scalia with Gorsuch, or if you will, Garland is my hypothetical with Gorsuch. Now you replace Ginsburg with Barrett. I think there are at least five votes, probably six, to strike down affirmative action. I talked a moment ago about how the chief is an institutionalist, and the chief believes in the court and the court not getting involved in certain kinds of issues, but the chief has been outspoken in his position on affirmative action. He is a great believer in colorblind policies; "We're not going to take race into account. We shouldn't take race into account," as he has said. So I think in all likelihood affirmative action is living through its last days.

The case that is involved Harvard or the district court, wrote a very strong opinion as to why the Harvard practice in fact was not a violation of the civil rights laws and discrimination laws. That case has now been argued before the court of appeals in the first circuit. It will be decided presumably within the next six months or so. I expect whichever way that goes...well, certainly if it goes against the government...there could be an appeal to the Supreme Court, and if it goes up to the Supreme Court, then you have the likelihood it'll be struck down. Now, before Jon asks me what the betting odds are on this, let me give you one other scenario. That scenario goes like this. If the court of appeals in the first circuit upholds the District of Massachusetts, which in all likelihood they will, and if that happens after November 3rd...well, after January 20th, which is very likely; it's hard to imagine the first circuit being done with this decision before then anyway...and again, if there is a Biden administration, there is an argument that the Biden administration would not seek to appeal the case in the first circuit. That would leave Fisher intact, and that would leave this intact and not bring the issue before the Supreme Court. So that is an argument for not having this case brought to the Supreme Court at this time.

It's probably a matter of time before some case gets up to the Supreme Court, but it might not happen this turn. If the Trump administration, of course, is re-elected and stays in power, then it almost certainly would be brought before the court in the next term.

Sarah Spreitzer: So, Fred, another big policy area that I think institutions of higher education have been following the court very closely on, or other courts on, has been immigration issues, because obviously that has been a big policy push for this administration, and a lot of the things that they've done...like the travel ban... have immediately gone into litigation. So what do you think that this means for big cases like...I think we were all pleasantly surprised this summer when the DACA case...came down in favor of DACA, but then obviously DHS is still very much limiting it. What do you think would happen with this new court on immigration issues?

Fred Lawrence: The DACA case was really less a question about DACA per se and more a question of administrative law and administrative procedures, and how the Trump administration went about trying to undo DACA. My friend and colleague Linda Greenhouse liked to distinguish between those cases in the last Supreme Court term which were an example of ‘yes and’ and those which were a case of ‘yes but’. In the DACA case, she said that was a ‘yes but’, which is to say the administration could not get rid of DACA this way, but there is an appropriate way to do away with it. It is, after all, an executive branch policy, so there is no requirement that one administration's executive branch policies follow on from another.

And should there be a change in government in power with the next election, you will see the people arguing for that flip sides. Those who were very upset about the Trump administration changing positions of the Obama administration will probably be very happy about a Biden administration making changes. Those who thought that the Trump administration had every right to make lots of changes from the Obama administration may be up in a high moral dungeon that a Biden administration will change many Trump administration positions. This is the difference between legislation and rules and regulations, to say nothing of executive orders. Rules and regulations, you can't just change overnight; executive orders, you largely can. But once something is actually part of administrative law through a rule-making process, it takes a little bit of time to do that. My guess is, the same way that this court set a roadmap for how DACA could be done away with, they'll support whatever actions a Biden administration wants to take on this. Should the Trump administration be re-elected, I would suspect that they will in fact follow the blueprint they got from the court, I suspect that they will do away with DACA, and I suspect that in the next term, the court would uphold that.

Jon Fansmith: And speaking of another regulation that may find challenges winding its way up in the courts, I think one of the things in the higher ed world that we heard about Judge Barrett was particularly a previous opinion she had offered on Title IX, and as I'm sure you're aware, the Department of Education has promulgated their final rule on Title IX. It was opposed by ACE and a number of other associations and our members, and very likely will face legal challenges. Do you have any thoughts about what that future of Title IX looks like before the courts?

Fred Lawrence: You know, her view on this is complicated. The case you're referring to is opinion she wrote in Doe against Purdue University in the Seventh Circuit Court of Appeals. Briefly, what the Purdue case was about was a challenge brought by a young man who had been accused of a violation of Title IX, went through the process at Purdue, which involved some problematic areas of evidence he was not permitted to see, what evidence he was allowed to question, what he was allowed to know. Purdue had administrative action, disciplinary action against him that he challenged that in district court. The district court dismissed his lawsuit, and the Seventh Circuit technically simply reinstated it. That is the only thing they actually did, they just reinstated the lawsuit for it to go forward. But we can say a little bit more about that from what she said. It sheds a little more light on her views.

She said two things, one of which I think actually makes some sense, and probably will get more aired out in this court; the other is, by my likes, highly problematic. The one that makes more sense is that she questioned the due process of the procedures that were used, and as a matter of a state university, required to give due process of law under the Fourteenth Amendment of the US Constitution. There was a suggestion by her that this practice, this policy was not going to hold up. Now, Jon, as you mentioned, you've got a whole new set of rules that are about to go into effect, or at least are trying to go into effect. My guess is they'll be bottled up in litigation until well into the next administration, and it's another one of these things that's going to turn greatly on how the election comes out. Will this, a Trump Department of Education, and a second Trump term wish to continue and fight these battles, or will a Biden Department of Education and a first Biden term abandon that and go back to a different view of Title IX? Probably somewhere in between what Trump has done and what the Obama administration did. That would be my guess. But in terms of the due process issues, those I think the court will be sensitive to, in terms of whether certain rights are permitted to be charged under Title IX.

The other issue that she said was a very disturbing observation that rules under Title IX were themselves gender-based discrimination because of their impact on men. Title IX is not a law that allows for gender discrimination suits to be brought by women against men. It's a law that permits for gender discrimination suits to be brought for any discrimination on the basis of gender. For that matter, it could be a same sex situation, it could be non-binary. So it has nothing to do with legislation that's aimed at men. The fact that she said that in that Doe against Purdue case smacks of an argument of reverse discrimination, and that reverse discrimination argument is one we have heard in the affirmative action area as well. So I would look for her to introduce that in some of her opinions. I don't know that there are five votes for that position, but it is a potentially pernicious impact on discrimination on our campuses, but also throughout our society.

Jon Fansmith: And obviously something to watch out for. I want to be cognizant of your time, Fred, and just say it is great to have an authority like you speaking so authoritatively on these issues, and in particular to have somebody I can go to if I want to make bets on judicial outcomes, and so ...

Fred Lawrence: Well, I'll tell you what Jon, if you have two more minutes, I'm going to add one other thing that may be of particular interest to an ACE audience.

Jon Fansmith: All right.

Fred Lawrence: That is the academic freedom aspect of what's involved in affirmative action. One of the core definitions of academic freedom goes back to an opinion by Justice Frankfurter, who knew a little bit about academic freedom. He was, after all, a professor at Harvard before he went on the Supreme Court. He said, "The essence of academic freedom is a university's ability to decide for itself four things; who goes here, who teaches here, what they teach, and how they teach it." That opinion gets picked up in the Bakke case in 1978, the first affirmative action case, and it really is one of the touchstones for the whole notion of academic freedom. The issue of how a class is comprised, what is the best way to put together an entering class, is at the core of what a university should do. If a university believes that, to a certain extent, taking race into account...not discriminating against anybody of any particular race, but taking into account to achieve its legitimate goals of having a balanced class, having a diverse class and an inclusive class...that is not just a matter of civil rights law, that is a core matter of academic freedom. That is the argument that was at the heart of the ACE brief that I'm proud to say Phi Beta Kappa joined, and many other organizations did. So when this issue comes back before the Supreme Court, I think we will hit hard on that issue again.
Now you're going to ask me how many of nine justices can I persuade?

Jon Fansmith: How did you know?

Fred Lawrence: I tell you what, I've got no control over how many we persuade, but I'll tell you what, if we do have some control over it, we're going to try our best to persuade them.

Jon Fansmith: And hear, hear on that. Fred, I want to thank you so much for you time and joining us today.

Fred Lawrence: Pleasure being with you.

Jon Fansmith: Absolute pleasure to have you.

To listen to earlier episodes and subscribe to dotEDU, you can find us on Apple Podcasts, Stitcher, Google Podcasts, and wherever you get your podcasts. For show notes, and links and resources mentioned in the episode, you can go to our website at acenet.edu/podcast. You can also use our email, podcast@acenet.edu for suggestions for upcoming shows or guests you would like to see, or just thoughts on how we're doing. Before we go, I would like to thank Carly O'Connell, Laurie Arnston, Audrey Hamilton, and Malcolm Moore, who are the exceptional producers of dotEDU, and make us sound as good as we do every episode. And finally, I would like to thank you for listening.

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​Each episode of dotEDU presents a deep dive into a major policy issue impacting college campuses and students across the country. Hosts from ACE are joined by guest experts to lead you through thought-provoking conversations on topics such as campus free speech, diversity in admissions, college costs and affordability, and more. Find all episodes of the podcast at the dotEDU page.

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