Advisory Opinions - Judge Strikes Down High School's Racial Balancing Policy

Episode Date: February 28, 2022

On today’s podcast, David and Sarah discuss a new case striking down a high school admissions policy in Virginia, digress into a talk about the power of Ukrainian courage, and then return to the law to talk about Clarence and Ginni Thomas and conflicts of interest. They finish with an extended discussion of the role of legislation in regulating the dissemination and discussion of ideas in public schools.   Show Notes: -Coalition for TJ v. Fairfax County School Board -Volodymyr Zelenskyy on the Ukrainian version of Dancing with the Stars -Washington Examiner: “The media's war on Clarence and Ginni Thomas” Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. Advisory Opinions Podcast. This is David French with Sarah Isger. I'm just going to go ahead and begin my during the Russian-Ukraine war qualification that I'm going to make at the start of every Advisory Opinions Podcast. If there are issues that arise within the ambit of the podcast, which there very well may be, and in fact, there might be some very interesting international law issues arising in the coming days as EU exerts itself, as economic sanctions start to bite,

as the war continues and is expanding and might be expanding into indiscriminate attacks on civilian areas. We're going to cover international law. We're going to cover international law. We're going to cover legal aspects of that. But as of right now, if you're wanting Ukraine coverage, I cannot recommend more highly the coverage we're doing on the Dispatch.com homepage. I cannot recommend highly enough the coverage we're doing on our main Dispatch podcast, on our Dispatch Lives. Sarah,

I don't think we have a hole in the Dispatch repertoire when it comes to Ukraine coverage. We do not. We do not. So with that as a caveat, let's move on to non-Ukraine developments. And there are, and there are in the legal world, and they're important. We had a significant district court opinion on admissions to an elite Virginia public school that has bearing, I'm not going to say it's going to influence the Supreme Court at all. The Supreme Court's going to do what the Supreme Court is going to do, but it is adjacent to the Harvard admissions case, and it is very, very much worth taking a look at. We also have a case that we're going to look at where that might be,

would you say, the most controversial decision that Katonji Brown-Jackson is going to have to deal with in her confirmation hearing or among them? Certainly among them. I think it's the most, but let's set expectations kind of low here. It might be the most controversial, but it's a little like the Gorsuch cold trucker case. Not a lot to hang your hat on in a lot of ways. Which if you are a listener who remembers the Gorsuch coal trucker case. Nobody remembers that. Nobody. Except the guy with rule 22.4 tattooed on his forearm.

Exactly. Exactly. Or I'm going to say we're going to get at least five commenters who will say, I remember Gorsuch coal trucker case. Okay. We're also going to talk Jenny uh, Jenny Thomas and con alleged conflicts of interest. There have been a couple of stories, one in the New Yorker, one in the New York times Sunday magazine about,

uh, Jenny Thomas's involvement in conservative and right-wing causes and whether what we should think about it or whether we should think about it at all, which is going to be, um, whether we should think about it at all, which is going to be, I don't know if my emphasis on that has put where I come down yet. As wife of husband of the pod, I have feelings. Yes, yes. Both of us have spouses who are quite accomplished and have their own careers.

And so, yeah, we're going to, we'll have some good chatting about that. And then let's wind up with some conversation about drum roll, please. Critical race theory and the little unpleasantness. We'll pick up where we left off. Yes, at the Yale Law School live podcast. So before we get into all that, first, huge thanks to the Yale Federalist Society for hosting us. We had a great time. It was a fun road trip, Sarah. It was a fun road trip. It included lots of interaction with Yale students, and it included a little road trip as well. It did.

It included, I thought, I thought you were going to say lots of interaction with LaGuardia Airport because if you've ever tried to rent a car at LaGuardia Airport, first of all, this is like relationship. David and I are going to do a relationship podcast someday. But if I can just like, I didn't tell you this, David, but if I can dive into like rule 101 on dating, take a vacation with the person or like be in a situation where they're out of their comfort zone and face any kind of adversity. And what you want to know is whether that person is a, like can put it in perspective and be a happy warrior in the face of adversity or whether they let it ruin

your whole vacation. And I am pleased to say that David, when faced with no coat, multiple shuttle buses, it took us an hour to get to the place to rent the car. And David just at no point, he was unflaggingly cheerful and it was delightful. And so then we obviously needed to stop for food. And once again, our pod marriage, David, worked really well because we both wanted McDonald's. Yes. Yes. You know, I grew up and I've never changed this and never wavered from this opinion that literally the unique smell of McDonald's is one of the best smells in the world.

It's delicious. But look, I think listeners are going to want to know something about you because the whole time, right? Anytime you're going on vacation with someone you're dating, you should be judging everything they do. Oh, I had no idea. And thinking about whether you can live with this. I'm not, like, obviously that's not what I was doing to David. I was just sort of, like, intrigued. Like, this was our first road trip.

And so we get to McDonald's. David, very fluent in the kiosk ordering system. Maybe more fluent than he should have been. And we get to our table. David has ordered a triple cheeseburger because I guess they don't have those in Tennessee. No. And you pull up to the table with a neon colored drink.

Yes. Strawberry Fanta. It was not Coke. It was not Diet Coke. It was not Coke Zero, which are frankly the only acceptable drinks unless there's Dr. Pepper, of course, and this is a Whataburger. But you pulled up with Strawberry Fanta. Yes. It's so delicious. And no shame, no embarrassment.

None. But as we road tripped on the way back, first of all, David was very kind, dropped me off at departures at LaGuardia to make an earlier flight. My flight was then delayed two hours. So then I just waited for David, which was great that it was delayed for two hours because it took an hour from when David dropped me off to drop off the rental car because of the reverse LaGuardia tour that he had to go on. Again, very, very cold, no coat, poor David. So then we got Wendy's at LaGuardia tour that he had to go on. Again, very, very cold, no coat, poor David. So then we got Wendy's at LaGuardia. The new Wendy's fries. We can give a review of those. But David, most importantly, you pulled up to the table with a neon drink, a different neon drink. Strawberry high C in this circumstance. Yes. Which has a hundred percent of the vitamin C a body needs. So. And all of the arsenic.

The bottom line is Sarah, I like, I just like to party and the, the, you know, with strawberry Fanta, it's just a good drink. When I was in, when I was in Iraq Iraq, or when I flew to Kuwait before I went to Iraq, I'm all by myself. I'm feeling kind of low. I'm a year from seeing my family, except for mid-tour leave. And the one thing that cheered me is I went to the dining facility in Camp Buring, Iraq. And what was there, Sarah? Strawberry Fanta. Strawberry Fanta. And so it gave me a spark. It gave me a spark of joy. And look, I'm just going to spoil this. We didn't love the new Wendy's fries. I've been looking forward to trying the new Wendy's fries for a long time, but I just want to asterisk them. They were LaGuardia Wendy's fries. And so really we don't have a whole lot of

knowledge about the new Wendy's fries. Though I will say that part of the reason to go to a fast food joint, as I've said during my chicken wars, is consistency. So if you can't be consistent, even in the LaGuardia Wendy's, that defeats the whole purpose of going to a brand name fast food joint. Nevertheless, McDonald's French fries, at least from our road trip, still far superior. And can I just say a couple of things about LaGuardia Airport? Let me just say a couple of things. One of the reasons why I was cheerful in the experience is because I was in awe. I was in actual amazement. Wait, first of all, when we got off the plane, you head toward the signs that say ground transportation baggage claim, like you do in any airport, right? And then when you get to

baggage claim, there's all sorts of signs that say like passenger transportation, Uber, whatever. There were no signs at LaGuardia Airport for rental cars. None. Not one. Not one. Not one. We had to stop and ask people. Yes. And then even when we went outside, Not one. We had to stop and ask people. Yes. And then even when we went outside, there was only one and it was barely visible. And we had to go walking and find it.

Yes. So then you take like a city bus type bus to a place where you drive past the rental car locations. They're right there. You will stop at a red light. All they have to do is open the door and you can walk out to the rental car location yes but no but then you drive past the jet fuel containers then you drive to the employee parking lot i don't know why because their employees have a different bus that they take you drive through the employee parking lot theturn, turn around, drive back by the fuel storage, drive back basically by the rental car section again. And then they drop you off in like 1940s Casablanca.

Yeah, it was this Terminal A, which is like World War II era architecture. And then you just stand there in the cold while another shuttle bus comes to get you. Once you get to Avis, it's all fine. But then here's the thing. You return the car and let me just say, you pull up first, they're doing all this construction and they'll have terminal A, B, C, and D. And they do not list the airlines

under the terminal sign yet. So you better know your terminal and not all boarding passes say it just fyi so we drove past a b and c before we found where sarah's uh where to drop off sarah then i go to try i drop off i go to try to drop off the car, and the rental car return sign points you to Hertz only. The rental car return. So then I drive past Hertz, and the next thing you know, I'm passing through a sign that says, Thank you for visiting LaGuardia. And I'm in the neighborhoods.

At this point, I'm just driving past all of these intersections that they're all uniformly saying no u-turn uh so that that was fun drop off the car take rental car shuttle to the next place to pick up wait for the city bus it's at this point 25 degrees um because i don't don't know why sarah i did not pack a heavy coat i'm just sitting out there with no real coat for 35 minutes in the frigid cold while city bus after city bus. But again, how can I be upset when I'm just amazed? It's just amazing. But it was a fun road trip, David. I had fun.

We basically did our podcast just like the two of us for each other. Yeah. Both directions. Commentary. Yeah. The whole way. Yeah. It was fun.

It was fun. We had a good time. All right. So let's dive into the real stuff. So over the last couple of days, we got an opinion. And this is an opinion that's going to matter more than your average district court opinion because of a couple of reasons. One, it's an extremely hot-button issue, racial admissions. I mean, this is what the Supreme Court's going to be deciding, obviously.

Deciding, obviously, in number two, hot button for the same reason as the Harvard case, the Supreme Court's going to decide because it involves what looks like efforts to diminish a particular percentage of, to diminish Asian American representation in the student body. And then number three is a little more nuancy kind of thing. And it's the direction of civil rights laws more broadly to what I would say as meaning what they say. And, you know, Sarah, I think the way to sort of set this up is basically you have the school, and it's a multi-district school, and it has long been, the admissions requirements have been published for a long time. It pulls students from Fairfax County, Loudoun County, Prince William County, Arlington County, and Falls Church City in Northern Virginia. So you're neck of the woods. I live in Fairfax County. And you may recognize those county names because those are the counties we were watching so closely during the Yunkin race. Based on the school closure, some of the CRT stuff, that's Loudoun County and Fairfax County in particular are where the parents were sort of having a full school board meltdown.

We had Ian Pryor on who was the head of parents involved, something parents of Loudoun County. And so this is this is that area already very tense on this subject. Yes, already very tense. And another reason why I forgot to say why this is significant is this has echoes of one of the key issues in the San Francisco recall. It is the same key issue. They tried to do the same thing. Right. Stanford combined high school, you know, this is the shining light high school and dramatically alter its admissions requirements for the purpose of adjusting the racial composition. So the school board and the fall of 2020 changes the admissions requirements. So here they were

before the change. So you had to reside in one of the five participating school divisions, be enrolled in eighth grade, have a minimum core 3. the five participating school divisions, be enrolled in eighth grade, have a minimum core 3.0 GPA, have completed or be enrolled in Algebra 1, pay a $100 application fee. And then if you satisfied these criteria, you were administered three standardized tests, the QuantQ, the ACT Inspire Reading, and the ACT Inspire Science. I don't know what those tests are, by the way. If you achieved a certain minimum score, you advanced to a semifinalist round, students were selected for admission from the semifinalist pool based on a holistic review that considered GPA, test scores, recommendations, etc. And that way, I mean, a little more systemic

than maybe your typical college admission standard, but those were the standards. So then they changed them to be eligible for TJ, Thomas Jefferson, under the new policy, students must A, maintain 3.5 GPA, be enrolled in full year honors algebra one course or higher, be enrolled in an honors science course, be enrolled in at least one other honors course or young scholars program. Then the court says the board also changed the evaluation process moving from a multi-stage process to a one round holistic evaluation that considered GPA, a student portrait sheet, a problem solving essay, and certain experience factors, which include in applicants to A, attendance at a middle school deemed historically underrepresented, B, eligibility for free and reduced price meals, C, status as an English language learner, and D, status as a special education student.

And then in addition to all that, the new process guaranteed seats for students at each public middle school in the school division equal to 1.5% of the school's eighth grade class size. Whew, okay. Those are massive, massive changes to what TJ would be. Yes. So the bottom line is that they increased class size by 64 students, but admitted 56 fewer Asian American students than it had in the prior years. The numbers, Asian American students were a strong majority of the class. They had been a strong majority for a while, but what ended up happening, what the result was that the representation, Asian representation fell to about 54%. For a class of 2025, it fell to around 49%. And this was a big, big, big decrease.

big decrease. So coalition of parents sue and court overturns the changes. Sarah, do you want to take it from here? Sure. So first, this was in front of Judge Claude Hilton. He is a Reagan appointee on senior status in the Eastern District of Virginia. in the northern district, sorry, eastern district of Virginia. And he writes in Courier font, which I just think is funny. That's what the, you know, we had the whole font episode, David. And so for those who want to go back and listen to us discuss judicial fonts, Courier is very old school. That's what the Fifth Circuit had been using before the font wars really took off within the Fifth Circuit and Judge Willett took over the fonting. And so anyway, just like stuck out to me that this is this is the old school font, man. Look, let's skip to the punchline, right? This is the judge writing.

The Supreme Court has recognized only two interests as sufficiently compelling to justify race-based action, remedying past intentional discrimination and obtaining the benefits of diversity in higher education. This is citing the most recent Supreme Court opinion on affirmative action parents involved. He says no remedial action exists here. And parents involved, the Supreme Court refused to extend the diversity rationale to K-12 schools, writing instead that their previous cases had relied upon considerations unique to institutions of higher education and that lower courts that had applied it to uphold race-based assignments in elementary and secondary schools had largely disregarded the

limited holding of that case. The school board's main problem, he says, is its focus on the goal to have TJ reflect the demographics of the surrounding area, described primarily in racial terms, far from a compelling interest. And remember, strict scrutiny, right? You have to have a compelling interest, narrowly tailored. Far from a compelling interest, racial balancing for its own sake is patently unconstitutional. The board cannot transform racial balancing into a compelling interest simply by relabeling it racial diversity. The school district and parents involved tried that basically. The board here did not even bother with such verbal formulations. Board members and high-level school actors did not disguise their desire for TJ to represent the racial demographics

of Fairfax County or Northern Virginia as a whole. Whether accomplished overtly or via proxies, racial balancing is not a compelling interest under strict scrutiny. And then, of course, it has to be narrowly tailored. And he goes on to explain how obviously this isn't narrowly tailored. The plan must be a last resort to accomplish the purportedly compelling interest. These steps and others, like further increasing the size of TJ or providing free test prep, could have been implemented before the board defaulted to a system that treats applicants unequally in hopes of engineering a particular racial outcome. So it just fails on everything, he said. Not surprising when you and I first talked about the changes that they were saying they were going to make even before this

lawsuit. I think we predicted exactly those three paragraphs, though he writes it so succinctly. And this is a lot of motion for summary judgment, right? There's no factual disputes here that need to go to trial. He's like, look, you said you wanted to balance it based on the racial makeup of the surrounding areas. That is a racial discrimination thing. That means strict scrutiny. And you're not even in the ballpark of meeting the strict scrutiny test. Obviously, this will go to the Fourth Circuit. This was the case I wanted to get to the Supreme Court before the Harvard case because I think it is a cleaner case. Like if I'm a Supreme Court justice, I want to set the outer bounds on each side of an issue. This is clearly black. This is clearly white. And then move into

the grayer area. And TJ, for me, is so clearly, as this judge found, so clearly on the not compelling interest side, whereas Harvard is, to me at least, a few yards in. Well, I think that the point that you're so right to highlight from the opinion is that the Supreme Court has really said this diversity interest is a college interest. And there are reasons for that. I mean, school districts. And even then, it has to be least restrictive means. And even then, it has to actually be an actual diversity interest, not a racial balancing interest. Exactly. Exactly. And there's a lot of reasons for that. And that school districts, you know,

gosh, they're like giant jigsaw puzzles all across the United States of America. And diversity is not always attainable within specific school districts. This is really, really hard stuff. And I think that the way the court was able to properly see, and this is what I want to get to the disparate impact analysis, the court was able to see very clearly that you took changes that were, and this is what I want to ask you, Sarah, if these were the initial longstanding TJ admissions criteria, and parents were just challenging it out of the blue because it did not demographically reflect the county, do the changes, if they had been the initial long-standing criteria do the do the changes still fall so super interesting question because that's what i wanted to get to next too

uh no you could create a charter school that has this exact set of admissions criteria it's actually what it's still higher education related but even even so, let me explain in Texas. This is how they got around the affirmative action policy with public colleges and university. They said if you're in the top 10 percent of any graduating high school in Texas, you're guaranteed admission to a Texas university. course of because these schools, it goes without saying, are not that racially diverse by accepting the top 10% of all of the schools, you're actually getting a very racially diverse set of admittees. So yes, a different school could have done exactly this admissions criteria. And by the way, I hope they do. Because what they're trying to do is say, let's take the top, whatever it is, they're trying to do is say, let's take the top, whatever it is, two, three, 4% of students at every middle school and put them into a school together. I think that's a great idea, but it's very different than what TJ's goal was. TJ's goal was to take every kid from the five county area who could possibly get in to Yarverton. Yeah.

So it's STEM specific and it's to prepare them to have a job in a STEM field at the highest tippy top level. The people from TJ, they, I mean, I don't know the exact numbers, but it's an absurd percentage go to Ivy league, MIT, Stanford,

Chicago, you know, Caltech, Caltech, top, top STEM programs. So it's just a different school. I think it's a great idea to have all the smart kids in a school together. I would have been in that school, no doubt, but not in TJ. One of my best friends went to TJ and I'm like, huh? Yeah, not my thing. Interestingly, by the way, one of my babysitters goes to a public school in the area and she turned down admission to TJ

because it is so notorious for, for lack of a better word, kind of being an unpleasant place to go to if you want to be a kid and want to be able to chillax at all. Which was a high priority for me in high school. Yeah, for a lot of us. I've heard rumors of Adderall problems at the school. It's just constant, right? They are constantly pushing themselves and each other to attain these things. At a young age, it's sort of like sending your kid to boarding school in that sense. So again, that's what TJ was. And the other thing about this, and I would say on the chillaxing point, I mean, look, Sarah, we all know Dungeons and Dragons modules do not build

themselves. I needed time. I needed time. Actually, what am I saying that I would have gotten to go to this other school? A 3.5 GPA? No, not even close. What I am surprised about, though, is why not reduce the application fee, the fee to take those tests? So for instance, I think the AP tests when I was in school were like $20, $25, maybe they were $50. And the school would pay for your first whatever two AP tests. Why not have the school give each school a pool of money to sponsor kids to take these tests rather than overhaul the whole system? I actually think a hundred bucks is too high to even take the test to find out whether you're going to get in. We got a lot to cover, so I'll hit this and then we can move on to the next case. But the thing that also really stands out about this, which is also what really stands out about Harvard, is how clearly the Asian population, I don't want to say is the target.

Well, in this case, more than Harvard, they were the target, explicitly the target. It's the target. And that's another thing that makes this case easier to me, is the unlike the harvard folks who all have lawyers slash our lawyers they were very careful in what they've ever said publicly not so with the school board in question here they were very forthcoming very honest about there being too many asian kids at tj so you have a targeted population here, a targeted population and what looked to be

facially neutral sort of admission standards, but a targeted population. And in that circumstance, that's where your disparate impact analysis, you almost don't even have to get to disparate impact

because you have evidence of invidious discrimination. Because they knew that the majority of the Asian population was attending, I think it was three middle schools. And so if they could basically limit that, they knew they could limit then the Asian population of the school. Yeah. Yeah. Gross. No wonder people were mad.

Yeah. In other words, no wonder people were mad. I'm much more on the fence of whether I think the Harvard thing is gross. Whether it's constitutional is a different question for me, but I am not, I don't like the Harvard admission stuff, but I'm not outraged, I guess. This TJ thing was outraging. It was, as you said, invidious discrimination against Asian Americans. They were clear about what they were doing. It looks a lot more like the Jewish discrimination in higher education pre-World War II when they developed the SAT,

where they're like, too many Jews. Nope, we've got to find a way to weed them out. The SAT turned out to be a funny way to do it. They misjudged those Jews, man. We're tricky. Wait, David, can I tell you my favorite Jewish joke from this weekend? There was a Jewish joke this weekend?

Did I miss it? Yeah, no. I mean, I didn't send it to you, but I'm going to say it now on the podcast. So the press did an interview with Ukraine's President Zelensky's mother, reporter. Mrs. Zelensky, the whole world admires your son Volodymyr for his bravery and leadership. You must be very proud. Mrs. Zelinsky, my other son is a doctor. By the way, one of the greatest things, one of the greatest things about the last 24 to 48 hours

has been people resurfacing all of Zelinsky's entertainment career. Oh, I watched the Dance with the Stars mashup. Oh, have you seen him in the leather clad, like looks like some sort of a send up of a Beyonce video? I don't think I saw that one. We might put that in the show notes. We might have to. It's just, you know, the thing is, just as a digression, because I wrote about Zelensky

over the weekend. My gosh, history is a funny thing. And how a person who there is nothing in their biography that would indicate that this guy, like there was a lot in Churchill's biography that said, yeah, I'll stand on the roof during the Blitz. You know, that's what I'm going to do. Hero of the Empire by Candace Millard on Churchill's young years in the Boer War.

That'll tell you exactly who's going to stand on the roof during the Blitz. Yeah. Zelensky, I mean, on February 21, there was a New York Times essay or op-ed from a Ukrainian journalist who said he's just in over his head. He's just in over his head. And the argument was, you know, pretty compelling. But I was talking to somebody the other day and who has been working this issue. And they said, look, he was he was dealt the worst possible hand. If you're going to talk about how

do you prepare for this, he was dealt a pair of twos. And you can critique this or you can critique that. But once the shooting started, my gosh. Well, he's played the president of Ukraine in a long-running TV series there. It was very popular. And I have to think he's imagining what would that character do at various points. And honestly, if more of our presidents asked what would Jed Bartlett do, not the worst idea in the world, frankly. Well, all I know is what he's doing is resonating across the world. He was prayed for by name at church this morning. I mean, anyway, it's remarkable.

I do think that Twitter, for instance, various online commentary, we're treating this a little bit like a movie and that we're cheering for the hero, assuming that like Indiana Jones, he has to come through in the end. And just because they've been able to hold off the Russians for five days, just because Zelensky is doing incredible things, you know, increasing the morale of his troops and of his country. You know, he,

he asked all prisoners who had combat experience to be released from prison. If they were willing to fight fight just he's doing everything he can you know the movie 300 is a movie too yeah that's a point i made exactly in my sunday newsletter this is not a movie is a sentence that was in there which is this is not guaranteed to have an happy ending for him it is unlikely to have a happy ending for him. It is unlikely to have a happy ending for him. Or for Ukraine. Yeah. Or, frankly, for the world at this point.

Now that, because, right, Putin wins. It's an unhappy ending for Ukraine and Zelensky, obviously, and for all of us to some extent. Putin loses. You think he's going to lose? You think he's going to walk off and say, well, I guess that didn't work out? He has a nuclear arsenal that he just called up in case he loses. There's no losing for Putin. He has to be able to save base. He has to be able to win or he doesn't stop. So there's no, there's no good outcome here.

And there was, there's this account of, you know, so we've seen the EU, this was not supposed to be a Ukraine podcast, but we've seen the EU step up. This is where our road trip sounded like. Us just like bouncing around too much. Yeah. We've seen the EU step up. And it's interesting. There's some story.

There's a story that came out last night that essentially what happens, the EU's dithering and bickering. In comes Zelensky into the call. And he basically says, I might not be alive tomorrow. We need you. And it was described as quote, extremely, extremely emotional. And that these are people who have been used to arguing and talking about messaging points and brand management. And here's a guy who's literally in the middle of a Capitol under fire and won't leave it. And they're arguing about a few stinger missiles, you know? And so I think the moral power of his leadership has made an impact.

I'm frankly stunned at how quickly Europe has mobilized behind Ukraine. And I don't think it works out the same way without the power of his example. And there's just a difference in leadership where leadership says, I'm with you and demonstrates it. There's just a difference. All right. There's just a difference. All right, well, moving on to the debate over Jenny Thomas. Yes.

The wife of Justice Clarence Thomas. So, David, we're not going to rehash what these articles about Jenny Thomas mean without understanding the last 30 years of history of Clarence Thomas and the media, Clarence Thomas and as it's looking at Roe v. Wade and affirmative action, everyone's pointing to Roe v. Wade on the right as the reason why they're going after Justice Thomas and his wife right now. Uh-uh. I think it's the Harvard affirmative action case. But let me read to you what the Washington Post actually wrote last week, 10 days ago now, David. All right. And this will be good flow into the CRT conversation as well. If you're writing, if you are going to read, but I think you're going to read.

Oh, I'm going to read that. Okay. Clarence Thomas, a black justice whose rulings often resembled the thinking of white conservatives. Issue spotter listeners, what's wrong with that? They did remove that sentence for what it's worth. It's not worth too much to me, but it's worth something, I guess. Yeah, so I'll just set that as the backdrop then for the next article that drops David. Uh, an even longer, uh, profile of Jenny Thomas and her work promoting right-wing causes that sometime come before the

court should cause Clarence Thomas to recuse himself and the fact that he hasn't should concern people who care about judicial ethics. That's sort of my high-level summary of the piece. Right. Let me just start with my first beef, David, that is actually just a journalism beef. let me just start with my first beef, David, that is actually just a journalism beef. Again, if you want to explain anything to someone in politics, I think you have to also explain whether it's unusual or rare. Like if you go out of your way to say like, OMG, this thing just happened and you provide no historical context, then I have to assume that you don't want your readers to have that context. And that's where I take your bias from, not what you're actually writing. I think you can write really mean things about someone. Um, and I will not think you have any bias in doing so. And I

judge that by whether you're providing your readers, what I think is the relevant context so that a reader coming to this with relatively fresh eyes, who's not steeped in this world like you and I are can walk away kind of understanding, um, you know, maybe not the full football arena, but like the 10 yards on either side, at least. And David, look, it just didn't even come close to that standard. Uh, Mark Pauletta, uh, he H.W. Bush's White House Counsel's Office. He worked on Justice Thomas's confirmation hearing. He also worked in the Trump administration at OMB. So he wrote in several right-wing publications pointing out what was left out of the article, which I think is relevant. And again, it doesn't mean that you shouldn't write this about Jenny Thomas and let people know what's going on. And it doesn't mean that what they wrote was false or anything like that.

But context here, I think, would change some of the conversation. Two pieces of, well, three, I guess, pieces of context. One, we've talked about Stephen Reinhart a little bit on the podcast. He was known as sort of the most left-wing judge on the Ninth Circuit. He had a famous phrase where he said, they can't overturn them all, in reference to why he kept sort of defying Supreme Court precedent. His wife was the executive director of the ACLU of Southern California. And when the Prop 8, that same-sex marriage amendment to the California Constitution, came up, the ACLU of Southern California filed an amicus brief in the lower court, and his wife had spoken about the case

publicly. And Reinhart absolutely didn't recuse himself. Quote, my wife's views are hers, not mine, and I do not in any way condition my opinions on the positions she takes regarding any issues. And then, of course, he voted that Prop 8 was unconstitutional, which was his wife's position as well. There was a similar situation with a judge on the D.C. Circuit. Her husband was ACLU's national legal director. He, of course, said all sorts of things publicly about cases that would then come before her, come before the court that she voted on bonk on. No problem there. And then, you know, and again, David, I want to get to your point about whether we should be discussing this at all. Justice Ruth Bader Ginsburg's daughter is a law professor,

and she wrote an article specifically on a case that was pending before the Supreme Court, and the petitioners cited her work several times to the court, to her own mother. Not only did Justice Ginsburg not recuse herself, of course, she voted consistent with her daughter. And if you're hearing all this and saying like, well, yes, because people tend to marry or raise, you know, in their household, people who agree with them on these issues,

exactly the point. The causal direction is going the wrong way. You think that Justice Thomas is voting the way that he does because his wife believes it? Maybe it goes the other way. Maybe she believes Justice Thomas is voting the way that he does because his wife believes it? Maybe it goes the other way. Maybe she believes it because her husband does, or maybe they married each other because they share similar beliefs. Either way, in order to prove a problem, to me at least, David, you'd have to show that his jurisprudence had changed to suddenly

meet with her expectations or that there was a financial interest. And while they create a lot of smoke around the financial interest, they don't got it. At no point do they got the financial interest in him ruling a certain way and her making money that therefore makes him money. And so that's the substantive critique of the story. Let me just give a merits thought though, David. I'm not super comfortable with what Ginny Thomas is doing. And if husband of the pod, you know, were solicitor general someday or something else,

I doubt that I'd continue this podcast with you. But I also don't like that and don't think it's very fair. Right. Okay. We'll have to revisit that when he's solicitor general. You think that if he's SG in the confirmation, they're like, and we would love for your wife to continue talking about cases. Could you, Mr. Keller, explain the gnaw dog doctrine for us? But do you think for a second that Scott, as Solicitor General, is any more affected by me as his wife with a podcast or without a podcast? Nope. I'll be saying the same things at cocktail

parties and to our friends, whether it's being recorded or not. Pillow talk is pillow talk. And as I've said before, David Scott and I have very nerdy pillow talk. Well, you know, I think you really hit on, you hit on the key. When I'm looking at the Clarence Thomas, Jenny Thomas situation, number one, let me stipulate the following. I don't like Jenny Thomas's activism, especially in the latter part of the Trump years. I knew her very little bit in the before times, very little bit in the before times. Super nice person. But I don't like a lot of this activism that they unveiled.

The problem you have here is if you want to talk about a justice who has a, which justice of the United States Supreme Court has a more established, longstanding judicial philosophy, comprehensive, coherent than Clarence Thomas. You're talking about a person whose judicial philosophy is the stuff that is so well understood, is so well understood, is so well, is so thoroughly analyzed that you and I could describe it and you and I could talk about it. And we can, he, I'm not saying he's one of the more predictable justices because that would indicate simplicity to his thinking. His thinking is not simplistic. It is very rich. It is a very rich originalist judicial philosophy that is his philosophy and has been forever. If I would, alarm bells would go off for me, if exactly in the circumstances you outlined, is there evidence of some giant payment to Jenny Thomas for quote unquote independent

work that is involving cases before the court? Ooh, that would bother me. We don't have that. And the other thing is, does Ginny Thomas do some work and then all of a sudden Clarence Thomas's jurisprudence change? In other words, does Clarence Thomas suddenly not become Clarence Thomas jurisprudentially? And there's no indication of that and so uh this is a it i feel like what you've got is there's a lot of beef with clarence thomas's jurisprudence and there's certainly beef with jenny thomas's politics um but there's no evidence that clarence th Thomas's jurisprudence has been corrupted in any way by Ginny Thomas's activism. And that's the bottom line for me.

Yeah. And as I said, Ginny Thomas's politics aren't my own, but the recusal standards are what they are. And to dive into judicial ethics a little, we actually don't want liberal recusal standards. We want very, very narrow recusal standards because you don't want people to be able to play games knocking judges off their cases by, for instance, having someone who knows the judge speak out publicly. And so that's why we have so few recusals that go on. You know, there was even for Justice Ruth Bader Ginsburg's husband continued to practice law while she was on the court and in fact ruled on a case that his law firm was on, according to Mark Pellett's write-up. And that was a little weird given the financial interest, but my guess is the law firm had taken care of the financial issue

and had sent a letter perhaps to the court explaining that there was no financial interest for Justice Ginsburg's husband. Great. I'm all for that because you don't want one side to hire the law firm

of Justice Ginsburg's husband in order to knock Justice law firm of Justice Ginsburg's husband in order to knock Justice Ginsburg off of the case. That's bad stuff. As the daughter of a judge, I have seen this happen. Yeah. And so for those listening and saying like, yeah, but why doesn't he just recuse sort of prudentially? Because that's not good either. And so you have to create recusal standards that are standardized and they're for everyone. And if it's good enough for judge Reinhart, and it's good enough for the DC circuit, and it's good enough for justice Ginsburg,

then it has to be good enough for justice Thomas. And I don't like spending a lot of time talking about someone's wife or children. I don't think we should do that. I think unless you have a clear conflict of interest corruption standard met, again, financial interest in my view would be the most obvious. There might be a few others, a job, for instance, that would still be a financial interest for a family member. Fine. But otherwise, maybe just leave the families out of it. We don't need to be going through this stuff. Yeah. No, I agree with you. I agree with you. In the absence of compelling evidence, it's in pulling the families into the battle is one of the things that is making our politics so incredibly toxic. And we'll take a quick break to hear from our sponsor today, Aura.

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and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. David, I wanted to follow up on our questioner at Yale, because I actually think his underlying question is important. And I wanted you to answer it. I felt like things got a little tense. And it was just like you'd answered it. And then he had some good follow ups, but we just didn't have time. There were a lot of other people. We didn't get to all the questions that were even of people who were in line. So, David, let's start from my first question. Is there a lawful way to prevent teaching a version of American history that we don't like

in secondary schools that we think is harmful to the proper education of an American citizenry? Is there a lawful way to do that? Absolutely, Is there a lawful way to do that? Absolutely, there's a lawful way to do that. Okay. Yeah, so if you have a, so K through 12 curriculum is basically entirely in the hands of the state. Public K through 12 curriculum

is basically entirely in the hands of the state. Yeah, but the state decides that it-12 curriculum is basically entirely in the hands of the state. Yeah, but the state decides that it's ditching the current curriculum and it's only teaching Marxism and that Vladimir Putin is the best leader in the world right now. And the state has decided that. And the school board is on board. As a parent, is there a way for me to sue or for then the state to pass a law banning the teaching that Vladimir Putin is the best leader in the world. Well, yeah. So what is the ultimate authority of state curriculum would be state government and state government defines how the curriculum is selected. So that varies widely from state to state. Some states delegate authority to a state school board. Some states

make leave the final the final analysis of what the curriculum is going to be to be local schools. So this varies, but the state government in theory has the power to define what the curriculum is for every public school in the state. It can remove the authority from any lesser political subdivision of the state and can remove it all the way up to the top and can say every student in this school from K through 12 will receive the following instruction and define each textbook, each assigned reading, everything. They have an enormous power over K through 12 education. Now, it is not unlimited power.

Why is that? There's still some constitutional constraints that come in, and there's also civil rights constraints. A state could not say our teaching is that, you know, we're going to mandate the teaching of a hierarchy of races with white people on the top. That would be a civil rights violation. Or at the bottom. Or at the bottom. That would be a a curricular kind of decision of admissions of a K-12 school, or actually of a high school, at Thomas Jefferson on civil rights grounds. So civil rights hovers over everything.

And civil rights laws were the primary, by the way, CRT laws were overbroad and unlawful, and that civil rights laws— Overbroad, unwise, and unlawful in certain circumstances, especially when applied to higher education. Great. And then you said civil rights laws, which ban discrimination on the basis of race, could cover a lot of these situations. And his question was, do you think those civil rights laws are overbroad? I would say the reality is that the civil rights... Now, this is a very

complicated question. There are some circumstances where civil rights laws, especially 15, 20 years ago, there was an attempt to interpret them in such a way that they would encompass constitutionally protected speech as harassment. That has largely been rebuffed. So as a general rule right now, civil rights laws exist in harmony with the First Amendment. So they're going to prohibit harassment as opposed to prohibit just speech I don't like on matters of race. So I think there's harmony. Sorry, if these states in question with CRT laws passed the exact same language as the federal civil rights legislation in question as state law, you'd have no problem with that.

Not only would I have no problem with that, almost every state has done that, in fact. So almost every single state has a human rights law or their own state civil rights law. Some of it's even broader than federal civil rights law, like the UNRU Act in California. But here's the interesting question, Sarah. In some way, civil rights law has been construed in an underbroad fashion, and that's in the category of reverse discrimination. In other words, the TJ, the Thomas Jefferson situation or the Harvard situation that there is a right now we're going through a judicial rebalancing of civil rights law that is much more along the lines of what Justice Roberts said, the best way to stop discriminating on the basis of race is to

stop discriminating on the basis of race. And that there is some room, I believe, for civil rights law to expand its reach, to be consistent with the text and its application in other circumstances. So this is, civil rights law should apply when you're engaging in racist actions that are designed to ameliorate, for example, other racist actions. So racism to ameliorate racism, that should be a no go. And that's actually a case I brought up in the Q&A, a Stanford case where Jewish employees were told, you got to hang out in the white affinity group. Well, A, what the heck are you doing putting people in affinity groups to begin with? And B, why are you telling Jewish employees that they're with the white guys? Do you not know anything about the history of white supremacy in the United States?

Spare me. But the bottom line is that civil rights laws for 58 years have been the primary mechanism for formally legally dealing with actual racism manifested in American society. Okay. So David, you have, for every CRT law that has actually been passed, I don't think I know of one that you think is good or support. There's one that is relatively benign than I'm aware of, but it's benign because it does nothing more than essentially reassert existing law. Right. Okay, fine. And you and I have talked on this podcast quite a few

times during the George Floyd protests, when Ahmaud Arbery was first shot and killed in the context of the NFL's lawsuit with Flores. You know, I've talked about the fact that we both believe that there are systemic racial issues and discrimination in the country. Given that, and given the fact that you don't like any of these CRT laws, is it fair to say that you actually are kind of okay with some amount of white privilege teaching in the classroom, in K-12 classrooms? Okay, so that – I hate the phrase K-12 for this reason. There's such a big difference between K and 12. What? Break it down. Use it 11. Are you fine with white privilege, Ibram Kendi teaching at any point K through 12? Okay. So Ibram Kendi, I'm not fine with that because I think it's bad curriculum. Okay. Am I fine with Derrick Bell? Yes. Am I fine with Kimberly Crenshaw? Yes. 1619 Project? Which essay? I mean, so some of the essays in the 1619 Project were

actually quite good. Some of them were not so good. And when you say you're fine with it, you mean lawful or do you mean you actually think it is a positive good for some of this stuff to be taught? I think some of it needs to be taught. Okay. Okay. So if you're, if you're talking about American, and I'll explain why. So, and let me, let me go back with some of my own history with CRT. So I came, I came into law school in 1991. 1991 was when CRT was really beginning to emerge as a supplement to what was called critical legal theory. Okay, so critical legal theory was something that dominated a lot of the Harvard faculty at the time. Critical race theory was something that was both a critique of American liberalism and also a critique in some ways of critical legal theory.

It was centered around a couple of concepts. One is intersectionality that was talked about with Kimberly Crenshaw. And I'm going to put one of the seminal essays about intersectionality in the show notes because we often talk. But you guys are, our listeners are original source kind of folks. Yeah, they are. They're original source folks. So I'm going to original source you with some of this, where Kimberly Crenshaw basically

took three employment law cases and illustrated how our existing categories of race and sex don't account for how categories of race and sex don't account for how categories of race and sex intersect. It was a really fascinating essay. I remember reading it 30 plus years ago. And Derrick Bell talked about something called interest convergence. So Derrick Bell had an extremely cynical view of American civil rights, the white response to the civil rights movement, where his basic view

was civil rights law was passed in part because it finally became in the interest of whites to pass it. That Soviet critiques, for example, of America, America's critiquing the Soviet union is this engine of tyranny. And the Soviets are turning around and saying, what are you talking about? Have you not seen the American South? And so it becomes in the interest in this Cold War narrative of freedom versus tyranny that we can't have Jim Crow anymore. So there's this interest convergence. And so it begins to develop over time

into a critical theory. It's complicated. It's got a lot of aspects to it, but it's got a few that are kind of common. One is this notion of interest convergence, that if you're going to take a realistic view of, and this is pessimistic, a realistic view of American interactions and relationships and policies regarding race, positive change often happens when it's in the interest of white people to make positive change. Revisionist history. Now, when you say revisionist, that doesn't necessarily mean false history. It means there are majoritarian narratives that are inaccurate that have eliminated the narratives that, um, for example, black Americans have no classic example of, uh,

how narrative has altered history is. And when I lecture on some of these things, I will often ask people to raise their hand when they first heard about the Tulsa race massacre. Was it in the 20, when they were in their twenties? Was it in their thirties? Was it in their 30s? Was it in their 40s?

I've had people email me and say it was in my 60s before I learned about the Tulsa race massacre. Now, here's one where I've been intersected with CRT, a critique of liberalism. This is where critical race theorists and our integralist friends have some things in common. This is where I really depart from a lot of CRT, to be honest, is that essentially what a critical race theorist is going to say is this classical liberal structure is itself deeply flawed. My argument about our classical liberal structure is, of course, it's not perfect, but it's actually provided the engine for critiquing embedded racism and transforming American society to become less racist. And it's this critique of liberalism within CRT that spawned a lot of speech codes because there's not the same view of free speech, for example. And that's why I ended up litigating against speech codes across America for a long time.

Part of this was embedded in this critique of liberalism. And then the last economically and culturally of oppressed American, of historically marginalized American communities to a greater degree than we have previously appreciated. Okay. Do people need to know this critique of American history? I think yes. Do they need to know it in 11th grade? Are you, as part of a college prep curriculum? But in the way that you're going to have to teach it to 11th graders, which is going to be a simplified version of all of that.

And that's where the white privilege part comes in. That you're teaching them that they have white privilege. that you're teaching them that they have white privilege. That's where I depart from you, because I think that at everything you're saying, I'm great with teaching that critique of American history. As a school, as a school of thought, yes. As a school of thought, sure.

But in order to teach that to 11th graders, I see exactly how that gets translated into white privilege. And I think that is so anathema to what our American experiment, um, and also just like even students get that that's stupid, right? The kid who, uh, you know, there, it, it creates a victim, victimim oppressor narrative, yeah. Yeah, where everyone's trying to find the way in which they are being oppressed and the way in which they're a victim. I had a mentor when I was in my 20s and a young female lawyer, and I said something about sexism. And she said, if you look around the corner, if you look around every corner for sexism, you will surely find it. And her point was not that everything's deeply sexist. Her point was the opposite.

Her point was if you try to explain every problem that you have, you know, you tripped over that crack in the sidewalk as sexism, then your whole narrative of yourself is going to be this victim. Everything's been sexist against me. The world's set against me because of my gender. And she's like, it may be true. It may be not true, but is that the right framework to carry you through your career? And she was right. Again, it might be true. Maybe the crack in the sidewalk is kind of sexist because men don't have to walk in heels. And if

they did, that sidewalk would have been fixed last month. But if every time I see a crack, I think men are the worst and I'm being oppressed and sexism versus I'm late to my meeting and I need to keep going. Like that's the difference. Well, and I think, but so here would be my response to that. I mean, okay.

So number one, I would say, if you are being taught this, one of the big problems with CRT is that all of these concepts, which I think can be instructive, all of them are debatable. Some of them are, I think, insightful. the CRT folks who have been deeply embedded in CRT have done some really fascinating historical work that would not be, that has not been done before. Um, and some sociological. Yeah, but David, our history keeps increasing since I've been born, there's 40 more years of American history. So what are we taking out just to fit in more of the timeline plus trying to fit in CRT all in a high school survey course? But see, that is, but it depends on the course.

But that is, and I think that's why I keep going back to curriculum, grade appropriate, ability level. So are you talking about a general survey course in American history, or are you talking about an AP history class? AP history is a survey course. Or it's history of the U.S. since... Oh, I would say an AP history survey course that introduced at least some of these concepts would be solid along with rebuttals.

Or a history of the United States Civil War since reconstruction. Or a history of reconstruction. I mean, all of these things- I'm all for introducing debates. I'm even for introducing this as one of the debates. Here's one version, here's another version. But David, that's not what's happening in a lot of these schools.

That's a pushback that you're getting. Yeah, and that gets to my second part, which is why you have to focus on curriculum. What ends up happening is a lot of these things get dumbed down and turned into DEI, diversity, equity, inclusion, word salad nonsense. So what people really get mad at, and justifiably so, is things like when you see a PowerPoint from the Smithsonian that says meritocracy and punctuality

are, that's whiteness. Or when you see a similar slide to that being taught in junior high school, it's not a debate. They're not being introduced to different historians' arguments about how to, what lens to view American history through. They're being told the lens through which to view American history. And that's a fine distinction that you're making that like, yes, in 11th grade, if you're introducing it in an AP history course as here's this one essay, here's an essay that disagrees with it. But that's not what these parents are by and large complaining about. That's where we're going to have to really depart. Okay. So what's happening in the real world, in my view, is this. And I'm going to, you know what I'm going to do, Sarah?

I'm going to FOIA some stuff and we're going to circle. We're going to circle back because I'm seeing what anti-CRT hysteria is doing where I live. And so there are places where things like my third grader is being shown some sort of slide about whiteness and that's absurd which is again why i go back to curriculum what is the curriculum here okay and you're pro transparency pro transparency of all parents should be able at all levels just across the board you should be able to read anything ahead of time that your kid is going to be exposed to. You have no beef with any of that. No. My view is... The way I said it is curriculum, transparency, civil rights. Curriculum, transparency, civil rights. So good curriculum, transparency, put the lesson plan online.

Let me see what my kids are being taught. And civil rights, as far as a legal hammer to bring down when you're seeing actual discriminatory harassment or racial discrimination taking place in the classroom. But here's what ends up happening. Because the definition I just, and when I just walked through sort of a short definition of CRT, I guarantee you, I guarantee you, there are listeners who have feelings about CRT who've not heard that. Okay? There are listeners with feelings about it who've not heard that definition of CRT. So then what does CRT become in the real world? In the real world,

what CRT becomes, it becomes teachings about race I do not like. And that's what ends up happening. And then the problem is you overlie this activist definition of CRT of they are teaching about race in a way that I do not like with extremely broad language of statutes that doesn't define, not one of these statutes defines CRT, by the way. They're all billed as anti-CRT statutes. They don't actually define CRT. What they ban are very broad concepts. And when people criticize me or critique me like that guy did at Yale Law, they start with one of maybe eight definitions of concepts. And one of the concepts is unquestionably covered

by civil rights laws, like teaching that one race or sex is inherently superior to another. But a law, for instance, that said it is unlawful to teach anything that could make someone else feel guilt because of their race, that is clearly overbroad as any speech law would be if it's about the other person's subjective

feelings. And that was one of the laws in question. Absolutely. Or, you know, in Tennessee, a law talking about that even any creed is superior or inferior to another. So wait, creed is superior or inferior to another. So wait, Nazism? Can I say Nazism is bad? I mean, this is how poorly drafted a lot of these laws are. And so here you have parents and they say, I want to do something. And then here comes a legislator with this really big and broad law that is subject to an enormous amount of abuse as we've seen them be abused already. So David, all of this is true. Yes. But talk about intersectionality. This isn't happening in a vacuum. It's happening at the same time as gender issues are being taught at an incredibly young age. And that's not CRT. It's a totally separate issue,

kind of, except they intersect quite a bit. And so, look, I was accused of like, I was too dismissive on a previous podcast of the concerns of parents. It's not that I'm dismissive. It's that this is a legal podcast.

And so like my feelings for you as a parent are relatively unimportant, I would imagine, to most people. But yeah, I get. It's all of these things intersecting and feeling like your kids are being taught a straight up different version of American history, different version of what science actually is, and that you're being told to sit down, shut up and let it happen. That's the complaint, David. And that's where i think your answer is ah we have laws on the books that prevent the extreme versions of these things that you're seeing and those lawsuits are

playing out by the way uh the problem is if you pass over broad laws about how it makes someone feel uh you've got a problem and we talked about the don't say gay laws hey david though can i can i say one other thing about what went down at Yale? It talked a little bit about why, in general, the idea of having a culture where you're not allowed to talk to someone who your team doesn't like is corrosive. But, you know, part of it was a little strange because I didn't really say a whole lot, but part of the criticism was that I was speaking to their dean of students who was part of the trap house gate email thing that we discussed in a previous podcast and is the subject of a lawsuit being brought by two non FedSoc students, but related to the same types of DEI issues and related to the Professor Chua dinner party gate and like all the drama that's going on at Yale. So that dean of students had been the dean of students at Harvard when I was there. And so

she came by to say hi and to congratulate me on having a baby, which she had seen on Instagram or otherwise. Look, as some of you have commented in the comments, he didn't know what you were talking about, Sarah. How was he supposed to know? Wait, isn't that kind of the point? He didn't know what we were talking about and assumed that because I was having a pleasant conversation with someone he didn't like, that somehow that, that it was appropriate to sort of, and I'm going to now take this out of what he actually said or even meant, that it could ever be appropriate to brand someone as a traitor for having a pleasant conversation with someone who you disagree with. And this goes, I think, David, to such a generational, cultural point about disagreeing with someone by engaging with them in a pleasant, non-disagreeable way. If you can't do that, especially after leaving a place like Yale Law School, but really leaving kindergarten, frankly,

then we have failed you as an older generation because you've got to be able to engage with the other side. And I'm sorry that our members of Congress don't seem to be able to do much of this either. But if you can't ever even engage without being branded a traitor by your team, then this is lost. Our whole system of self-government is lost. And it's what made me so depressed about that interaction was because that's what it felt like there was some consensus on at the school. And he, by the way, was not unique in this. That's coming from what's happening to FedSoc students. There's a thing called FedSoc Adjacent at Yale, where if a non-FedSoc student is seen talking to a FedSoc student, they are branded FedSoc Adjacent at Yale, where if a non-FedSoc student is seen talking to a FedSoc student,

they are branded FedSoc Adjacent, meaning that they are persona non grata to the rest of the school and that they are in a buffer zone in the DMZ and are not to be spoken to or socialized with because they are FedSoc Adjacent because they were seen talking to someone from FedSoc. And so to then see a FedSoc member kind of do the same thing with me talking to Dean Cosgrove, I was like, it's broken. I don't know how you fix that, except I will tell you that that was a little bit of what was happening at Harvard in your era, David. And Dean Kagan, I think, deserves a lot of credit for what she did. And my point in saying that is not to pat Dean Kagan on the back. She doesn't, or Justice Kagan, she doesn't need my pats. But rather to say the leadership starts at the top.

And if we can see Harvard do a 180 on this stuff, it is not impossible to turn around. And it is possible with a single person leading the way. Leadership matters. Okay. A couple of things. One, for us, it wasn't FedSoc adjacent. It was women who were saying, I'm not going to date anyone in FedSoc. Well, that's allowed.

They don't have to date you. They do have to engage in conversation with you. So one thing. Although, David, can I just tell you, since this is a relationship podcast, I also had a pay it forward rule that if any guy works up the guts to ever ask you out on a date, you have to say yes. Because if you just reject him, having not even gone on the date, that the guy you actually want to ask you out will get rejected by some other woman and will be too shy to ask you out. And so I had a strict pay it forward system. Everyone could get a first date, which is how I went out with Ben Shapiro.

Which needs to be its own podcast. But so two things. One is I get when again, I've been out speaking a lot and I get this CRT question all the time. And one of the first things I ask is, tell me about your school. Tell me about what they're teaching at your school. And what I have found is oftentimes people have a lot of knowledge of a CRT abuse taking place 800 miles away and less visibility on what's happening in their kids' own school. And so they've seen something on the news.

They've seen a horrible diversity PowerPoint, stupid diversity PowerPoint from like, we just talked about that white-ness is, punctuality is whiteness or whatever. And they're very worried about it, but they have very little visibility on their own school. So the first thing that I say is know your school because that's where your influence lies. And that's where the transparency laws and pressure come in. Because before you really want to pass any law and substance, you want that transparency first. That is the key is the transparency. Yeah.

So know your school. And the second thing is people with extreme vitriol have come after me about these civil rights laws and saying, how dare you relegate parents to civil rights laws to address racial discrimination? racial discrimination. Number one, you're way underestimating the power of civil rights litigation, way underestimating it. But number two, exactly. Number two, here's the thing I want to get to about this. And I just want to make this point. when black parents had faced decades of Jim Crow, decades of Jim Crow, outright white supremacy, outright segregation, what was the tool that we gave them? We gave them civil rights laws. And now you're going to turn around and you're going to tell me that when white parents in the U.S. face one one-thousandth of the challenge, let's just be honest here, one one-thousandth of the challenge,

the tools that we gave black parents to deal with decades of segregation just aren't enough for us. They're not strong enough for us. We need stronger tools. Now, if you think about that for five seconds through the lens of how CRT analyzes our society. I kind of see your point. Just ponder. I see. Ponder. We'll leave it at that, David. We'll leave it with that ponder.

And this has been a tease for our relationship podcast on dating and so much more well this and we didn't even get to the kataji brown jackson case so we'll have to table it we'll have to table it um that will come up we don't you know the hearings are the hearings have have the hearings been scheduled yet? I haven't seen them scheduled yet, no. But they've said they want to be done by Easter. Not the hearings, like the vote. Oh my gosh.

Okay. This will be done. We will talk about it. And it's honestly not that exciting. No. So there's a reason why we left it on the table. But as always, we appreciate your comments. And please, if you want to contact us,

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