Advisory Opinions - A New Way to View the Supreme Court

Episode Date: July 12, 2021

In today’s podcast, David and Sarah talk about the recent Supreme Court term and how Trump’s justices have changed the ideological makeup of the court. After some SCOTUSBlog stats analysis, Sarah explains how she would categorize the Supreme Court’s jurisprudence this year, and why a lot of commentators are leaving out part of the story when they discuss the justices’ ideological leanings. Plus, a dive into an anti-critical race theory lawsuit out of Evanston, Illinois, where elementary school students have been getting simplistic and controversial “anti-whiteness” training. Show Notes: -SCOTUSBlog statistics -Deemar v. Evanston/Skokie School District 65 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And I'm just telling everybody I sound a little bit different today because I'm on the road. I'm on the road in Northern California at a retreat. I got to say, Sarah, I love Northern California. I really like Northern California. I think a lot of people on Twitter would not be surprised to hear that. No, it has nothing to do with ideology. Everything to do with like climate and geography. So

I was in... I think it's too cold. No, I see. I don't know. I mean, I'm born in Alabama, raised in the South. July, August, and first part of September are not my favorite times of the year. Hot and humid. Toughen up, David. Toughen up. If my hair can frizz, so can yours. But I will just say I've been on the ground and ground zero all over San Francisco yesterday.

And it is not a dystopian hellscape. Interesting. Yeah. Yeah. I kept wandering around looking for like the piles of hypodermic needles and I'm sure they're there somewhere, but the city looked lovely. It was a great day. But anyway, this is not a San Francisco, Northern California podcast. This is a legal podcast. Indeed. And we've got law to talk about. So we're going to, here's what we're going to do. We're going to start with a roundup on the Supreme court. We're going to run through some interesting Supreme court statistics. And then we're going to talk about, oh yes, you guessed it, anti-CRT laws, not really, civil rights laws as a response to toxic anti-racist or critical racist theory teaching.

There's been a case filed and been actually a couple of cases filed, and we're going to walk through those and we're going to give you guys a lesson so that when at your next cocktail party, when somebody invariably brings up the difference between just hearing speech you don't like and discriminatory harassment, you're going to be able to answer that question. You're going to be the center of attention as you opine on this. So, but first, SCOTUS, Sarah. of attention as you opine on this. So, but first, SCOTUS, Sarah. Well, thanks to the wonderful people at SCOTUSblog, we have their final stat pack for the term, chock full of really interesting nuggets of information. They have these going back a long time. So I sat with the stat pack, I marinated in it. I also went back to do some comparative stat packing

because, David, as any Supreme Court advocate will tell you, when there's a new justice, it's a new court entirely. And we've had many terms basically in a row of a new justice. And so once again, new court, who dis? and so once again you know new court who dis um you know you and i very early on in justice barrett's tenure talked about the possibility of this being a not a 6-3 court dominated by conservatives where we would know the outcome of every case but something more like a 3-3-3 court with barrett kavanaugh and roberts as the sort of joint swing votes in the middle. Not that they would always vote the same way, but that in fact you would see more 5-4 cases with

weird conglomerations and alignments. I want to provide an argument for our 3- alignment and against. All right. So first of all, in the stat pack, for instance, there's a great little chart of how often each justice agreed with another justice on the court this past term. And if you look at that, there is no question that it is a 3-3-3 court. You have, not surprisingly, Breyer, Sotomayor, and Kagan sort of clumped together. They agreed 76 to 85 percent of the time with one another. And then you have Roberts, Kavanaugh, and Barrett, 76 to 84% of the time together.

What's interesting, and they agreed with each other, those three agreed with the other two, more than any of the other justices. So that, no question, that's a three clump and a three clump. It's not even close. It really, it pops out at you in the data, unquestionably. Now, what I think will shock people is that our other three, the far right three, as they're deemed in the media, at least, Alito, Gorsuch, and Thomas, actually not particularly clumped together. They're the least clumpy. And I think people think they're the most clumpy.

And in fact, it's the exact opposite. So let's see here. Gorsuch and Thomas, 73% of the time. Okay, it's a little below the 74% that the others were. But Gorsuch and Alito, 65% of the time. Okay. That's it's a little below, uh, the 74% that the others were, but Gorsuch and Alito 65% of the time low Gorsuch and Thomas, my ride or die trio, 59% of the time. Huh? Now this is full agreement. I mean, the people at SCOTUS blog went above and beyond, right? They have percentage in which they agreed in full, percentage in which they agreed in part, and percentage in which they agreed in the judgment. And so it does change as you, obviously, that's why they ran

three different stats. But I think the agreed in full is really where I think most people are thinking of these alignments. And so those are the stats of agreed in full. most people are thinking of these alignments. And so those are the stats I've agreed in full. So that's my case for the 3-3-3. But David, let me give you a little bit of my case against. Okay. So when you go back through the archives,

you can also see the frequency of each justice in the majority. And they charted out a nice little bell curvy style, so you can always see who the middle justice is. You go back to the Kennedy days. Kennedy's sitting there in the high 90s pretty much every time where he is the swing vote. O'Connor, Powell before that, there's always this median 90s-ish justice. So in all cases, there is someone who stands out in the middle. And in fact, with the same percentage that Justice Kennedy, the same high that Justice Kennedy reached. Do you want to guess who it is? Kavanaugh. Yeah, this is the Kavanaugh court.

Kavanaugh is unquestionably the swing vote. He is in the majority in 97% of all of the cases this term. That is extraordinary. It's really, really high. Yeah, that is extraordinary. Okay, so Sarah, since you are, are you the pioneer of 333? If we're going to look at the historical record and when the historians are digging through the ruins of our civilization and they come across the brittle papyrus chronicling the current court and is the

original 333-er, is that you, I think it might be you. I think it might be you. I mean, look, I think when I said it, I didn't have a whole lot of evidence for it. So I don't know whether I should get credit when I was saying something without evidence, but I do think that I was the first one to say that I thought this was a possibility emerging when they were doing some of those COVID-related cases there. Okay. Well, we're going to give you credit. Great. Okay. So, according to the ISGUR theory, which it is now, and we don't even say 333, it's just the ISGUR formulation, the SARA structure. So, according to the SARA structure of the court, or as the originator of the SARA structure, do you think this is enduring?

Or do you think that what we've had is some new justices kind of not jumping into the deep end of the pool right away, of getting the lay of the land, sort of not really willing to engage in substantial doctrinal restructuring early and just wait because next term we've got some earthquake cases coming? How would you predict it? I know it's, you know, and we know, we all know how, how, uh, you know, predictions are typically, uh, ephemeral and worthless, but let's have a little fun and see what you think about is this, is this structure for real enduring, substantial, et cetera. So I think that's the question because there were some other things that we saw this term that were. That make me think that this may be enduring, but we don't know that yet.

So there were eight, five, four decisions this term. There were five different alignments of that five, four. Right. that five, four. Right. So, and look, it could be that forever now under this new court, we're going to see different alignments because of that three in the middle that all you do is have to pick off, you know, two of them. And so you end up with this weird, uh, these weird five, four alignments. Although gosh, the five, four alignments this time were, um, even weirder than that. were even weirder than that. So one, Kagan joined Alito, Thomas, and Gorsuch and Barrett in one case.

Thomas joined with Breyer, Sotomayor, and Kagan in two cases. I mean, there's... Even without the 3-3-3, there's some weird alignments going on. Will that settle into a routine? I don't know. I kind of, I wonder, you know, part of me thinks no. But we've certainly had in the past some weird blips. So for instance, if you go back, um, so justice Kagan, this time was, uh, in the majority, I don't have it right in front of me, like 60 some percent of the time,

a high 60% of the time, uh, OT 17, uh, sorry, uh, OT 18, 83% of the time, OT 17, 74% of the time, OT 18, 83% of the time. OT 17, 74% of the time. OT 16, 93% of the time. OT 15, 95% of the time. So there are these moments where Justice Kagan is second only to Kennedy in being in the majority the most. I don't think anyone thinks, and that's before we have Gorsuch

or Kavanaugh join the court. So she's the junior justice at that point. I do think there might be something with junior justices finding their footing when they're willing to join a narrow opinion versus when they want to write that dissent from a major opinion, stuff like that. versus when they want to write that dissent from a major opinion, stuff like that. So I'm inclined to give it some time. Yeah. Yeah. I mean, I think the wild card here is less Kavanaugh. Again, just putting the completely worthless prediction hat for a minute.

I think the wild card here is not completely worthless, informed, potentially worthless prediction. I think the wild card here is more Barrett than Kavanaugh. Kavanaugh has a really long record, a really long record of jurisprudence. And I think that what we've seen from Kavanaugh is Kavanaugh and Justice Barrett, first term, very little record of jurisprudence before she was sworn into the court. A lot of predictions of her jurisprudence based. I mean, almost more on sort of like her religious affiliation and beliefs

than maybe her express jurisprudence, but we'll see. We'll see. So David, I have a new way to think about the court. And I think it explains how people are getting, why Republicans are so frustrated with their judicial nominees, how they could rethink nominations without, for instance, abandoning originalism and textualism and the conservative legal movement entirely to come up with this outcome based only ends justify the means common good constitutionalism. So bear with me. The way that I think both sides, in fairness, have always thought about judicial nominations for the last 20 years is on this left to right axis of ideology, conservative to liberal. So they plot out Justice Gorsuch

and Justice Kavanaugh. You know, on that axis, they look about the same amount of conservative. You have all these opinions that they've done. If anything, Justice Kavanaugh, based on his opinions,

flanks Gorsuch from the right, actually. And while you don't have opinions of Justice Barrett, again, for all the reasons you said, they probably thought that Justice Barrett was even maybe a little bit to the right of Kavanaugh and Gorsuch. They tried to pick justices in the model of Thomas.

And yet, when the numbers come out, Justice Gorsuch this term agreed with, fully agreed with Justice Thomas 73% of the time, as I mentioned. Justice Kavanaugh agreed with Justice Thomas 46% of the time. not fully explaining how someone comes out unless you adopt the sort of Josh Hawley, Adrian Vermeule, common good constitutionalism that these people were sort of lying to you the whole time. There's no point in this exercise because the cases aren't coming out the way that you want. And even if they are originalists and textualists, if this is what we've been fighting for, as Senator Hawley said, then either we haven't been fighting for very much or what we have been fighting for has been very wrong. But let me introduce a different concept here, David, which is a vertical axis.

OK. And the vertical axis is institutionalism. And this is the role of the court. And the role of the court to me, I think, let me give you a few examples of how one could think of the role of court differently. That it is responsible for the lower courts and its job is to provide guidance to those courts. That precedent is important to follow because it affects the court's credibility with the public. That changes to the law should be incremental and narrow, sort of a Burkean minimalism. All of those ideas would fall on

this vertical axis. So the lower you are as an incrementalist, the more you believe that the only thing you should ever be thinking about to decide a case is what's in the four corners of those briefs, the law and the facts and the dude who's sitting in front of you. And the higher up you are on that vertical axis, the more you think, well, gosh, if we do this, we're not giving a lot of guidance to the Ninth Circuit moving forward. Or if we make this huge change in the law, it undermines the credibility of the court. Because if we're just like flim-flamming around up here and the law can change so the law, it undermines the credibility of the court. Because if we're just like flim flamming around up here and the law can change so dramatically overnight, that is not good for the next time we have an opinion that we want to be respected and building up that credibility of

the court that has been built over 200 plus years since Marshall, you know, President Jackson ignoring the court, trail of tears tears followed credibility of the court's really important so what i would say is that horizontal axis will only get you so far it gets you a gorsuch and a kavanaugh if you are really teed up on wanting only justice thomas's on the court then you've been missing a whole dimension of how human beings, human being judges at least, work. And Justice Kavanaugh is a high institutionalist. Justice Gorsuch is a low institutionalist. And if you plot them out on that chart, you're going to have a much better prediction of where they're going to come out.

What I would say right now, again, only having one term, is that Justice Barrett is actually very conservative, but she's also very institutionalist. And so it's actually going to put her in this very interesting spot on my two-dimensional graph here, where she is going to align quite often with Gorsuch, but for very different reasons. They end up with the same average score, even though one is, you know, that Barrett might be more conservative, but more institutionalist. Gorsuch, less conservative on the first axis, but far less institutionalist. And the numbers, the statistics do bear that out this term. They align a lot more often than I think you or I would have thought of them aligning. Well, and Fulton seems to be almost the paradigm of that because you had the three, and let's just use it as a shorthand, more conservative, less institutionalist justices,

more originalist, less institutional, saying, let's get rid of Smith. Let's just do it. Let's go. Let's do it. And then you had Barrett and Kavanaugh. They weren't saying, Smith, go. Yay, Smith. They were saying, well, we don't really like Smith. We don't really know what is necessary to replace Smith. And besides, we can just go ahead and rule on this case without resorting to overruling Smith. And that's not not originalist. It's correct. It's still consistent with originalism. It's just less ambitious. And and I do think that that access that I think that's I think that's a great way of looking at it. And the interesting thing will then be, okay, you've got this sort of swarm of ambitious circuit court judges out there, and you have a swarm of ambitious law professors,

but let's focus more on the circuit court judges. How do you signal to a potential next president, GOP president, that you're not one of those, you know, institutionalist types or restrained, you know, what you are is you're bold like Justice Thomas. Here will be a good, interesting test to see if other people are seeing the same thing. How many Judge Willett type dissents do we start seeing? And the questions that you're going to start hearing from senators, for instance, where it's going to be a lot more focused on precedent. And instead of the right answer being this really mealy mouth, precedent is important to respect

when it's respectable. Or this idea that there's super precedents. I think instead, you're going to hear answers like, that precedentence only is good as whether I agree with it. Yeah. Yeah, exactly. Exactly. And you're going to have some people with a track record that says, look, in Jones v. Smith, even though precedence said that I had to rule, I filed a concurring opinion that said I wouldn't do this and that this should be revisited. And you might see this. The other interesting thing is, OK, so you have a conservative legal movement built up over decades and you do not take a culture of a conservative legal movement and dramatically shift it in months or even a couple of years. Originalism is out of step in a lot of ways with populism,

in a lot of ways. And so you might have a GOP political infrastructure that gets increasingly populist, but with a legal infrastructure that retains its originalist, classical liberal roots. And then where do you go hunting for your justices? Then it might be, what about our super ambitious state attorneys general who have demonstrated that they love to own the lips of lawsuits? You might see people going to more unconventional routes

because they're not content any longer with classical liberal originalism and they are much more content with whatever you want to call it, but it's outcomes oriented jurisprudence. So I think a lot depends for the judiciary for now, for now, uh, the judiciary is very, the GOP nominated side of it is very focused on classical liberal originalism. very focused on classical liberal originalism. Will that remain the case if the GOP continues to move populist?

And I don't think it can really remain the case. I don't know. Sarah? I don't know. What do you think of my two axes? You like it? I love it. I love it.

Yeah. We just need to go ahead and mark this down today because the original conception of 333 is lost in the mists of time. We've commissioned a band of archaeologists to hack through the overgrown jungle of the Internet to find our original mention of it. But we need to mark this one down. Thank you, intern Jonathan. All right. Should we move on? Let's do it. Okay. So, and you know, it's, I don't know if I've ever seen an issue come from almost nowhere to capture the, not just the attention of the internet,

but the voracious attention of the internet that has now drifted into on offline spaces as well as the argument over CRT and critical race theory and the response to it in schools. And one of the things that I have said, if you've listened to our podcasts, if you have read my work on the French press, is basically threefold. One, these anti-CRT laws that you're reading about do not ban CRT. They don't. It's just, just don't even think they do. They don't. They ban some concepts that you can find in CRT. They ban some things that sweep much broader than CRT. They don't ban CRT.

Number two, the better way to deal with bad curriculum is with better curriculum. In other words, textbooks, course materials that replace the bad course materials you don't like. And it's very interesting, Sarah. I've had some good conversations with folks who are sort of on the front lines hearing from parents. And if you hear from parents on curricular problems, I was talking to one person,

they said 80 to 90% of the curricular problems I'm hearing don't have anything to do with race. They have to do with like gender and the anti-CRT laws. And so for example, you know, uh, trans, trans issues, things like that. Got it. And the anti-CRT laws just aren't going to do a darn thing about that. That's why playing whack-a-mole with trying to ban ideas is a lot worse than, um, trying to get a better curriculum. So, you know, so that's number two of my sort of three-pronged strategy. And number three is there are undeniably some excesses so bad that they're going to begin to walk into civil rights violation territory.

And so we had a whole bunch of readers, thank you, send a couple of lawsuits our direction. There were a lawsuit and an EEOC complaint. So the lawsuit that came to us comes from the United States District Court for the Northern District of Illinois. And it's a case called Stacey DeMar versus Board of Education of the City of Evanston, Skokie. In this case is really, let me tell you some of the facts of the case as alleged in the complaint. So the district did an anti-racist programming effort and diversity training. And

look, if you think weird, wild PowerPoints on diversity training is something brand new, it's never happened before. I went back, I wrote a book that absolutely no one read, Sarah, that was released in like, oh, one, so about 20 years ago. And I was talking about some of these diversity trainings and some of the same materials that are on the internet now were on in diversity trainings 20 years ago. But we didn't have Twitter and we couldn't take a screenshot of it and send it to the web. But anyway, so here's some of the programming. In the anti-racist programming, the teachers, this is again, the allegations. It requires teachers to accept that white individuals are loud, authoritative, and controlling, to understand that to be less white is to be less racially oppressive, to acknowledge

that white identity is inherently racist, to denounce white privilege, to participate in exercises with individuals of only the same color called affinity groups, that is racially segregate themselves to participate in these discussion groups, to participate in privilege walks, a group exercise whereby teachers stand in a line separate from each other in response to the prompt, because of my race or color. And then the district allegedly says that if teachers oppose, question, or quote disengage from any of these teachings, the district will call them racist. It's also adopted a curriculum for pre-K through eighth grade. And some elements of the curriculum teach, quote, whiteness is a bad deal. It always was. Racism was a white person's problem and we're all caught up in it. Students should consider what it

means to be white, but not to be a part of whiteness. White people have a very, very serious problem and they should start thinking about what they should do about it. Quote, in the same way that systems and the government are controlled by white people and racism being a result of it, so it is with men controlling systems and government and message about women being dumb, weak, and inferior. It goes on and you get the idea that there are a whole lot of allegations made about whiteness and white people. Students should sign a pledge to be anti-racist. It doesn't say required, but should sign a pledge to be anti-racist. And so this raised the question, is this a civil rights violation? Now, this is a really interesting case, Sarah, because it allows us to talk about some of the different concepts of racial discrimination under the law.

And this is where you're going to become an expert. But before we, you know, I've been kind of walking through these facts before, is there anything about this case that stepped up, that stood out to you that I didn't talk about? Well, so one of the things you said was the whiteness is a bad deal. It always was. That comes in a children's book. It's actually a cartoon featuring the devil with a red pointy tail on fire holding money with a contract. And it says, binding you to whiteness, you get stolen land, stolen riches, special favors. It goes on. It's not great. It's not particularly well written, I'd argue. And it says in red with this fire devil thing, whiteness is a bad deal. It always was. And it says this book is being read to children in kindergarten. And I guess what they seem to be doing to me, before we get into the legal side,

what they seem to be doing to me, before we get into the legal side, is separating race, I think their argument is, separating race, being white, from whiteness. An adjective associated with being white, but their point isn't that all white people are, by definition, embracing their whiteness. It's just that you probably are. I don't, okay. So that's not, I think that's where they're going to try to separate out. No, this isn't race-based kind of, but again, I want to, um, use a really offensive historical analogy. We used to take Native American children from their parents and their communities and put them in all white, you know, schools, uh, not meaning other white students, but white teachers, sort of this, you know, white savior complex and basically teach them that being Native American was associated with all these bad attributes and stereotypes. And that in order to succeed, you needed to be more whiteness, less Native American-ness.

If anyone thinks that was okay or a good idea, then by all means, let me introduce you to this curriculum. But to me, it seems so, there are so many similarities in terms of why we don't do that with children. And again, that's before we get to the legal side of this, of creating a hostile environment. Teaching that one race is associated with bad attributes is a problem. And we have done it in the past and it was a problem in the past. Why was it not a problem now? So that's where I'm coming from a sociological standpoint. Real bad, real, real bad what they're doing here to the children. I'm frankly less concerned about the teachers. Yeah. So let me back up because I'm glad you mentioned that term whiteness. And this is where some people really get, you get this sort of Mott and Bailey argument sometimes from folks who are defending this

kind of training. And what they'll say is, I mean, look at those. A CRT is a sophisticated academic discipline. A true CRT scholar would look at those materials and roll their eyes so hard, they almost pop out of their head. Like that's just so blunt and ridiculous. That's not CRT. CRT is something you learn in graduate level courses. It's something you learn in law school. It's not this. Right. It's not that different than Marxism in the sense of when you're learning the thought of Marxism, you are learning to see different historical events through the lens of class and economic power. And CRT, again, at this graduate level, you are learning to see different historical events through the lens of race or ethnic power. And again, at a graduate level, revisiting historical

events from all sorts of lenses is kind of your job. Yeah. Yeah. It's important that you learn to do it, actually. It's very important that you learn to do it. So anyway, so they'll say this isn't CRT, but then if you know anything about CRT, you see that this is what you might call sort of a dumbed down version of it, the PowerPointed. And it's not even, let me put it this way, it's pulling concepts from it, making them dumb, and then putting them on a PowerPoint. it, making them dumb, and then putting them on a PowerPoint. And so, for example, the whiteness concept. So one of the elements of a lot of critical race theory is the idea that race is a social construct. And there's just a lot of historical evidence for that position, that race is a social construct, and that what has been considered to fit within whiteness has varied over the years in some

very interesting and often counterintuitive ways. If all you're thinking about is racism, is a skin color concept, it's a cultural concept, it's a power concept. Okay, explain that to a kindergartner, to a first grader. What does a person who's in first grade hear? White. White. So what you're doing is you're pulling out these concepts that are rooted in graduate level academic theory, trying to create them, put them in a context that a first grader will understand.

And what does it seem an awful lot to somebody sitting in a first grader's shoes when they're hearing about all the evils of whiteness? White people bad. I mean, so that's part of this that is frustrating is that, yeah, look, defenders of CRT, look at what is actually being taught. Are there some roots of this dumb PowerPoint and this really in-your-face teaching that are found in CRT? Yeah. Is this exactly CRT? No. But there's a fruit that comes from it, that comes from CRT, a bitter fruit that comes from CRT that is in this curriculum. So, all right, what about discrimination law? So with discrimination law, basically what you have, you have two main laws in play here. One is Title VII,

and that's going to apply to teachers. And Title VII prohibits race, sex, national origin, discrimination, religious discrimination, and employment, which now includes also discrimination on the basis of LGBT status. And that's in employment. And then Title VI prohibits race discrimination in federally funded education. So this includes higher education. This includes public K-12, a lot of private K through 12 that gets federal funding, charter school K through 12, which is public. It's broad. It is really broad. And one thing it does is it prohibits sort of what you might call the outright race discrimination that is prima facie. In other words, white people are hired and black people are fired, like just outright race discrimination. I'll give you a perfect example of a gross Title VII case that I worked on early in my

legal career. And that is a boss walks into a restaurant. He looks at the composition of the waitstaff and he says, there is too much pepper in this room. We need more salt. And that's flat out race discrimination. In other words, there's a concrete advantage for white people, a concrete disadvantage for black people. It also works reverse discrimination. Go to the EEOC website and you'll see abundant examples of workspaces where black employees have discriminated against white employees. In other words, these doctrines apply to people of all races. So that's sort of the easy to identify. And when you look at some of the fact patterns here, whenever you're seeing somebody called out on the basis of specifically called

out on the basis of race and asked to do something different from other people on the basis of race, that's when your prima facie race discrimination light is going off in your head. I.e. spidey sense. Yes. You're the hairs on your arm are standing up. But then there's something else, and it's called hostile environment harassment. And hostile environment harassment is dealing with that category of harassment where you're on the receiving end of unwelcome conduct on the basis of your race or your sex, you know, in title seven context or your religion and that conduct, it's got to be unwelcome. In other words, you don't want it, you don't like it. And it's got to be either so severe or pervasive that it essentially deprives you of the benefit or the enjoyment of the, deprives you of the enjoyment of the educational benefit. So it's got to be It deprives you of the enjoyment of the educational benefit.

So it's got to be conduct that is severe or pervasive. It permeates your workplace, permeates your classroom, or it's so severe that it is that even, you know, one or a few incidents just dramatically alter your educational experience. And that circumstance is called hostile environment harassment. And that is a rule. It is not, it is not that if I'm exposed to reading, asked to read a book that I don't like, and it contains a lot of stuff that's offensive, that that's hostile environment harassment. It's not exposure to bad ideas. It's exposure to unwelcome conduct that is so relentless and so severe that it actually just impacts my educational environment. And so going back to these kinds of cases, some of the stuff is going to be relevant to one prong and some of the stuff

is going to be relevant to the other prong and some to the stuff is going to be relevant, relevant to the other prong and some to both. Um, and so that's where you're seeing some of these cases is, Hey, am I being explicitly singled out for different treatment and negative treatment because of my race? And if that is the case, then I'm often going to have that civil rights cause of action. Did I screw anything up there? No, I think that's about right. But now it's, there's two things we need to apply to this. One, applying that to these facts. And two, bearing in mind this little enclave of affirmative action, where some race discrimination has been seen as benign and acceptable, even though it is race discrimination. Now, you and

I have talked about a case that is pending for cert before the court. The chief asked for the views of the Solicitor General's office. office. The timing therefore has been pushed. It still should come up again this term. But basically, if the SG's office takes as long as they possibly can, and then the court punts like one or two or three times, they could push it to next term. But anyway, that's all to say that benign form of discrimination is pending. But as of right now, you can have benign forms of discrimination. And that is relevant to this type of case. Yes, it is absolutely relevant. Now, the interesting thing is there's often a great deal of one of the ways in which people who are defending affirmative action defend affirmative action is they will say that they will bring out a pile of

studies and evidence that say, for example, that if you don't get into Harvard, there's no real actual that you can say sort of class-based disadvantage that white applicants to Ivy League schools are receiving. In fact, that there is a, because of the abundant academic opportunities that exist in the academic marketplace, that the quote-unquote discrimination that exists is utterly benign. That it's utterly benign. And there's an enormous value in the diverse and there's a corresponding value in diversity there's a corresponding it's tough to quantify but a lot of these cases are built around a particular value in diversity now what's different with some of this is that rather than sort of saying oh oh, your harm is that you're going to

Brown and not Harvard, a lot of this is your harm is in your academic workplace or in your academic setting that you can't realistically escape, that it's a part of, this is your life, that you, as a white person, you're going to have to do a privilege walk in front of everybody that identifies you as an oppressor class, that you as a white person are going to be separated into a separate affinity group or you as a black person are going to be separated into a separate affinity group and presumed to have all kinds of things in common when you may not. kinds of things in common when you may not. A case involving Stanford, an EEOC complaint, was talking about how there were Jewish employees at Stanford who really, they didn't actually have a problem with the concept of an affinity group. They had a problem with being jumped, lumped into the white affinity group, as if Jewish people haven't suffered from white supremacy throughout world and American history. And so, you know, in these circumstances, it feels quite a bit

different to me from the affirmative action type cases where there's sort of this compelling interest in diversity that is being used to overcome the alleged or the harm to the white applicants or in many cases, the Asian applicants. Here, what you have is allegations that people were basically subjected to racial stereotyping, racial humiliation and division on the basis of race in their actual classrooms and their actual workplaces. And I got to say, Sarah, a lot of these facts, they make a pretty compelling case. I think that the Stanford case, so the Stanford case obviously takes place in higher education. The Evanston case takes place for K through 12, although most of what I saw in the pleadings were primary school, which certainly will make it more compelling. I'm curious what you think. On the one hand, I thought the Stanford case was more persuasive

on the hostile work environment. On the other hand, higher education. Yeah. Yeah. And I'm curious how you would break that down as well. Yeah. So I think the Stanford case is a Title VII case. It's an employment discrimination case. And in a lot of ways, it's locking into a lot more, a lot larger body of case law involving hostile environment harassment in the employment context. And here's the way I would describe the Stanford case. I think they make a colorable claim, but I'd want to see discovery. That's true for all of these. Yeah. No, I think the Stanford case makes a colorable claim and I want to see discovery. And the reason why I say that with Stanford is if they just rested their complaint on, um, you made me read white fragility. And then when I disagreed with white fragility, people browbeat me for it.

Well, welcome to a discussion, right? You know, but if it's, you made me read, read white fragility, you browbeated me for it. You made me get into affinity groups that didn't fit me. Then when I objected, you said that Jews had certain negative characteristics. Then and then you start to put, you know, like substitute other racial categories and say, well, you know, as a black employee, I was asked to be in a black affinity group and I objected to that. And then you ascribe all kinds of racial characteristics to my objection. And then you start to see how a lot of this stuff, um, is not so easily defensible. So I feel like with Stanford, it's locking into this kind of category of hostile environment, racial harassment, where

you begin to ask, okay, how pervasive was this? And these are the kinds of questions you ask. And legally, by the way, it has to be real, real pervasive. Generally speaking, a one-off comment will not be pervasive enough. Even in some circuits, the use of a racial slur, a single racial slur, and we talked about one of those cases actually, David, it is still up in the air of whether using the N-word one time will be considered sufficiently hostile to be pervasive. In the case, I remember it was actually graffitied on an elevator. It wasn't clear how long it had been there, who had put it there. Yeah. So, but the bar for pervasive is really, really high.

Yes. Yeah, it is. It's very high. Now, when you get into the academic context, the bar for pervasive, severe or pervasive is pretty high as well. However, however, when you're talking about young elementary school kids, they're not going to be treated the same as adults. And some of the defenses about the alleged sophistication, the sort of the underlying sophistication of concepts like whiteness and privilege and things like that are going to ring more hollow when you're talking about a second grader. And, and so this is the kind of thing where

it's going to be very interesting. And there's also less of a body of case law of hostile environment harassment in these kinds of contexts. I mean, if you had to compare, if the body of case law of hostile environment harassment in the workplace is a blue whale in the animal kingdom. And the body of case law in the Title VI hostile environment harassment context might be a ferret or a dachshund by comparison to the blue whale of Title VII hostile environment. And I only might be exaggerating a little bit there, but there's just not as much. And there's not as much at these lower elementary school grades. And so I think you've got a real, this school district, if their defense rests in any way in sort of the sophistication of their argument,

of their argument? Uh, I am very skeptical about that. I'm very skeptical. In fairness, so far the arguments they're making, at least publicly in the press, are real bad. We have not seen their response to the lawsuit, but the Evanston-Skokie PTA Council, and don't forget, I used to live there, said the lawsuits claim sound like they stem from personal discomfort with the unpacking work needed to combat racism. Here's the quote. Their fragility, their emotional response to being asked

to look at something that historically has not been asked of them has been an uncomfortable experience. But I know so many people in the district who are so incredibly supportive of this work that it's really unfair to center a negative view. Did the lawyers vet that statement? Oh, that's a terrible thing. Like, yeah, that your lawyer is going to be not pleased that that was your public response to this. Yes, we're creating a hostile environment. It's their fault for feeling the hostility. Woo.

Nope, nope, nope, nope, nope, nope, nope, nope. Yeah. You know, one of the elements is this is unwelcome conduct. And the district is going, you better darn well believe it's unwelcome because you can't handle our truth. I mean, wow, that is going to be interesting. Now, one, so one of the interesting aspects and one of the, one of the aspects of this that I think is important when we're talking about the, the issue more nationally is a lot of people who have been very, very, very angry at me for opposing these anti-CRT laws that don't ban CRT, is they have said, well, what do you want us

to do, file a lawsuit in every school district in America? That's not how this works. When you establish a liability risk attached to a particular kind of training, when that is established, you don't have to file lawsuits everywhere. You don't. I mean, that's literally true of every lawsuit that's ever been filed, that like that's how law works in this country. I mean, yes, in theory, I suppose educators could say, well, that was applying to Evanston Skokie, but not Spring Branch. But then the judge, I mean, the judge, first of all, you lose right away. They're quite quick cases. But then in addition, at some point, you could be subject to various sanctions for

continuing your unlawful conduct. Yeah. I mean, if one of the elements of a hostile environment claim or one of the elements of a successful Title VI lawsuit is a privileged walk in affinity groups, you're requiring a privileged walk at your own risk at that point. And so, you know, a perfect example of the power of litigation is that, you know, when, again, you know, I keep saying this, look, guys, I've dealt with this CRT related stuff for 30 years. One of the things that came out of CRT was the college speech code, because it was parts of CRT, again, not all of it, because CRT is complicated. I know, I know, I know. But parts of CRT reject small L liberalism, including the traditional American free speech regime. And that was the motivation for colleges passing hundreds of speech codes sort of en masse in the beginning in the late 80s, moving into the 90s.

a speech codes litigation project against these speech codes. And it got going in the early 2000s. And the fire keeps track of the number of clearly unconstitutional speech codes in the US. They've been declining for 13 consecutive years. And so whereas it used to be around 75% of major colleges and universities had a speech code, about 20% have them now, and they don't really enforce them. Did we file 600 lawsuits? 700? 800? No. A couple dozen? Two dozen? Three dozen? And that's the effect of precedent. That's the effect of creating a liability risk. That's what happens. And the advantage of Title VI, as I said, is if you're concerned about racial discrimination in schools, it reaches beyond K through 12. It reaches to higher education. It reaches even to some of these private schools that use federal funds. It's, it's reachy. some of these private schools that use federal funds. It's, it's reachy.

It reaches. It's reachy. All right. I feel like that was good. David, I do have one last question for you. Yes. I was on your Wikipedia page because I needed to send it to someone else, just like a, you know, quick rundown. And it's a picture of you from 2012, where it looks like someone is holding up in front of your face, like a sign that says Aquaman is terrible. And your face is like, it's a mixture of confusion and horrified. And I'm curious, what is happening in your Wikipedia picture? Yeah, that was also the picture very kindly chosen for my against David, the against David Frenchism article, which is probably how it ended up on Wikipedia.

Yeah. It's a decade old picture and I was speaking in an event and I can't remember which event it was. and I can't remember which event it was. Um, but the best I can remember is I might've been telling a story and being kind of animated and they caught me in a really bad moment. And that it's not bad. It's not a bad photo. You just, it's just a really interesting facial facial expression. Yeah. I don't even know how you go into asking Wikipedia to maybe have a photo that's from the last 10 years. Now, didn't you have a weird photo incident when it was announced that you were coming to the dispatch? Politico ran a picture of you that was how many years old? It was from 2007.

Yeah, it was interesting. It's actually an interesting like journalism moment because, so it's a picture from 2007. I am in law school and I'm working at the Romney campaign. And so there's a, a, um, MIT for president, you know, poster behind my head. And, uh, it felt very much like they chose that photo because it's like a partisan looking photo. And I don't actually have that many partisan looking photos. Um, and so I emailed them and I was like, guys, like, this feels like you're trying to make

a point with the photo, but you've picked a photo from 15 years ago. And that seems quite unfair to me considering, for instance, a whole lot of people who work in journalism at some point or another worked in politics. In fact, I think it's a good thing. And they wrote back and like, again, I don't know whether this is true or not. And they said, um, we're happy to change the photo so that, you know, that's like, that was the Getty photo that was available. And there is actually some, you know, basically each news organization generally subscribes to a photo, um, subscription service basically. And then you can go back through the archives like we do at the dispatch. And so if you subscribe to Getty, but not, I don't know what the other ones are, the AP or something like Reuters. Yeah. You're going to get only the Getty options and not also

the Reuters option. So even if you go on Google images, if Getty doesn't own that photo, yada, yada, yada, it's very possible that it was quite unintended, but boy, was it silly. I was unrecognizable. No, it's a good picture. It was a good picture. It was just, I thought, that seems like Romney, Romney, like which Romney? And it's not even Romney 12. It's like original 07 Romney. Yeah. Yeah. Well, you know, quick, super fast story. Why did I know Reuters immediately for pictures? Because we had a Reuters photographer in bed with us in Iraq for a while. And you're going to want to say embedded, not in bed.

No, not in bed, but in bed. In bed. Yes. Yeah. Embedded with us for a while. And he went out on a mission. And one of the things that we did is a lot of times Al Qaeda would hide explosives and canals that were covered with these tall, dry reeds. And so we would light the canals on fire and move to a distance rather than like walk through the, I mean, much safer, but it would cause some pretty big booms sometimes as the fire would catch the munitions and everything. And then he sends it up and it's kind of near an abandoned building. And he sends it up to Reuters with the caption, Troopers from 2nd Squadron, 3rd Armored Cavalry Regiment, burn a village. Burn a village in eastern Diyala province.

Burn a village. Oh, no. Yeah. And so you talk about causing a crap storm. Oh my goodness. So, I mean, they, and of course the higher command doesn't take our word for it that no, no, no, we weren't burning a village. Like we literally had to get people in a helicopter and fly back over the village to show that it was totally fine. But, uh, yeah, uh, walking into my commander's office, cause he, he held me responsible for sort of babysitting all the embedded media and we didn't

get many, but when they came, he, he were like, okay, this LA times reporter, you know, she's your responsibility. This Reuters photographer, he's your responsibility. I they came, he, he were like, okay, this LA times reporter, you know, she's your responsibility. This Reuters photographer, he's your responsibility. I'm like, sir, take a look at this photo caption that's going around the world. That was not a pleasant, that was not a pleasant meeting. So Reuters. And with that, we've come to the end of our podcast. we have yes we have we will be back um i don't know we're not gonna we're not gonna leak your special fun recording that you're doing tonight

no no we're not gonna leak it no but i am gonna say but august is gonna be amazing august is gonna be lit it is gonna be lit and i am gonna leak that august is going to be lit. It is going to be lit. And I am going to leak that August is going to have something to do with aliens and it's going to be glorious. So I'm just going to say that. And we've still got our SCOTUS Roundup episode coming up. Yes, indeed. Yes, indeed. So please go subscribe on Apple Podcasts. Please rate us on Apple Podcasts and please check us out at thedispatch.com and we will be back on Thursday. And we'll take a quick break to hear from our sponsor today, Aura.

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