Advisory Opinions - What Does 'So' Mean?

Episode Date: June 3, 2021

On today’s podcast, David and Sarah engage in a riveting discussion about the meaning of the word “so,” specifically in conjunction with the Supreme Court’s ruling in Van Buren v. United States, which deals with the legality of accessing a confidential government database for improper reasons. Our hosts then walk us through a free speech controversy at Stanford Law School involving a local Federalist Society chapter and a parody flyer, including discussing some previously hidden context. Finally, they review the 6th Circuit Court ruling striking down racial considerations for COVID loans. Show Notes: -Van Buren v. United States -“Law student’s graduation in jeopardy as Stanford investigates satirical email lampooning Federalist Society, Sen. Hawley, and Jan. 6 [UPDATED]” by the Foundation for Individual Rights in Education (FIRE) -“Sixth Circuit Enjoins Use of Race and Sex Preferences for Coronavirus Relief Funding” by Jonathan Adler in Reason -Regents of the University of California v. Bakke -Adarand Constructors v. Pena Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And before we go on at all, Sarah, are you okay this morning? Are you doing all right? I am doing great. I am sitting on a balcony in Bastrop, Texas, where Scott and I are having our first post-pandemic trip away from the brisket. It's glorious. You will hear baby birds in the background because I am sitting under a wonderful little sparrow's nest.

And I feel like I work hard as a mom. Nobody works as hard as bird moms. Nobody. It's not even close. So she's just working her little tail off for these baby birds who are very demanding. Now, I will say the main difference is she only has to do this for about four weeks, whereas I have to do it for like 40 years, I think, or something. So you're going to hear her. Also, it's perfect because

it is supposed to start raining about when we end this podcast and continue through the entire time that I'm here. But that's okay. I'm enjoying the sunny weather while podcasting with you. So yeah, so I'm very happy to be here. So you said Bastrop, Texas? Bastrop, yeah.

Bastrop. Now, what is Bastrop, Texas? It's about 30, 40 minutes outside of Austin, heading back toward Houston. And there's a nice little resort out here called the Lost Pines Resort. Oh, nice. Okay.

I was not tracking Bastrop, Texas as a vacation destination. Oh, but it is, David. And the reason to be at this resort is that there is a lazy river and you and your margarita can just go around on the lazy river all day long if it weren't raining. Oh, nice. Okay. Well, Sarah, we're going to begin. And I am confident that listeners are going to be very excited about this. And with an extended discussion of the definition of the word so. And just to clarify, that like versus Sound of Music, this is S-O, not S-E-W. This is S-O, not S-E-W.

Correct. Yes. And it's not S-O-W, like sow the wind and reap the whirlwind. Yes. Not a needle pulling thread, not reaping the whirlwind. S-O. S-O. So, yes, there was a Supreme Court case that was just handed down. We've not really talked about this one,

Sarah, but it's kind of fun. And it has the longest discussion of the definition of the word so that I've ever read in my entire life. So in true advisory opinions fashion, we're going to dive into the weeds on the meaning of common terms. We're also going to talk about a really odd academic freedom, free speech issue that arose at Stanford involving the Stanford Federalist Society that took Twitter by storm last night and seems to have already been resolved. But we got a lot of messages about it, and it's going to give us a chance to talk about um something a aspect of the story that wasn't talked about at all and so you're going to hear it here for the first time exclusively on advisory opinions and then we're going to talk about um the a six circuit opinion that happened a couple of days ago about SBA loans, coronavirus, and race preferences.

So three topics, boom, boom, boom. It's going to be a little bit shorter than the average podcast, maybe. I don't know. It depends on how long we talk about. So. I'm literally looking at the lazy river, David. Okay. Okay, Sarah, let's go. All right, let's talk about, and we'll start with, a case called Van Buren v. United States. And there's a little bit, there's some interesting little facts behind it. The case comes out of a relationship, a woe-begone, misbegotten relationship between a former

Georgia police sergeant named Nathan Van Buren and a ne'er-do-well named Andrew Albo. Now, apparently this guy, Andrew Albo, was known well enough that the chief of Van Buren's department warned officers to deal with him, quote, carefully and said he was, quote, very volatile. And I love the dry language of court opinions. Here's Justice Barrett. Notwithstanding that warning, Van Buren developed a friendly relationship with Albo, or so Van Buren thought when he went to Albo to ask for a personal loan. Okay.

So much wrong. Can we stop right there? Yeah, come on. Okay. Number one, your sergeant warned you about a specific member of the community. All right. I try to live my life, Sarah, in a way in which police sergeants are not, or deputy chiefs, where police deputy chiefs are not warning people against being involved in relationships with me,

you know, friendships with me. Yeah, I think that's good. I think that's a good North Star. Yeah. That's a good North Star. Yeah, that's a good. That's that's like the lowest of low bars. But Van Buren says, Leroy Jenkins, let's get to know Andrew Albo and borrow money from him. And that's the next thing. So and then borrow money. So Albo being volatile does what? As one does, he secretly recorded that request and took it to the local sheriff's office where he complained that Van Buren had sought to shake him down for cash. So the taped conversation made its way to the FBI, which then helpfully, quote,

devised an operation to see how far Van Buren would go for money. So this brings us to another thing, Sarah, before we dive into the facts of the case. If you're ever interacting with another human being who's rather explicitly trying to get you to crime and to commit a crime, and says, I have this great criming idea. I would like to do X, Y, or Z.

It's becoming increasingly plain to me that there's just a good chance that's a member of the FBI agent. I think if there's one thing you can take away from this whole podcast, if we can add value to people's lives, it really is that if someone explicitly asks you to crime with them, maybe don't.

Don't crime. I mean, that goes back to Varsity Blues, right? Remember the really remarkable way in which once the individual who is arranging for the admissions to Harvard, USC, etc., gets caught by the feds, that he goes and he explicitly starts talking to all of his marks about crime and they all acknowledge their criming. Yeah, anyway, okay, keep going. So the FBI wants to know how far will Van Buren go? So Albo asked Van Buren to search a law enforcement database for a license plate.

I love the little flares to this opinion. A license plate, quote, purportedly belonging to a woman whom Albo had met at a local strip club. Albo, no stranger to legal troubles, would tell Van Buren that he wanted to ensure that the woman was not in fact an undercover officer. In return for the search,

Albo would pay Van Buren around $5,000. And Justice Barrett says things went according to plan. Van Buren used his patrol car computer to access the law enforcement database with his valid credentials. He searched the database for the license plate entry that Albo had provided. After obtaining the FBI-created license plate entry, Van Buren told Albo that he had information to share. So then he gets arrested, charged, and he's prosecuted under a statute that prohibits a statute on the ground that running the license plate for Albo violated the, quote, Authorized Access Clause of 18 U.S.C. Section 1030A.2. That he accessed this for an improper purpose defined as personal use. Now, this violated the department policy.

This was, he absolutely, this is not, this is not an issue that, did he or did he not violate department policy, but the question was, did he commit a felony violation of Computer Fraud and Abuse Act of 1986 that imposes criminal liability on anyone who intentionally accesses a computer without authorization or exceeds authorized access? And the term exceeds authorized access is defined to mean, quote, and I'm just going to say I just love the way people draft statutes, to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter. Okay. So the question was, in this case,

if he was entitled because he had credentials to access the database, so in other words, he was in a database that he had access to, like if I go into a Google Drive that we have at the dispatch that I have access to by being an employee of the dispatch, but I do it for a reason that's wrong, does that mean I've exceeded my authorized access for criminal liability purposes so um sarah i have a question for you uh-huh so my question is what is that word so doing in the statute at all um correct because the sentence would work just fine entitled to obtain rather than entitled so to obtain. Right. Right. So that that's what I why I sighed about the definition here. So anyway,

what the court held was that basically Van Buren didn't violate the law. He might have violated the policy, but he didn't violate the law because under the plain language of the statute, according to Justice Barrett, he was able, he was entitled to access. He was entitled to access. He did have authorization. And he might have violated department policy, but he didn't violate the plain terms of the statute. And it was a really interesting alignment here. It was Barrett, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh with Thomas, Roberts,ts and alito dissenting i don't know if i've ever seen that alignment it was weird yeah notable yeah okay so basically what ends up happening

is that the government tries to argue that the word so is really clear what the so is is that it provides a it's hard to describe it was really actually a little bit hard for me to understand um that so captures any circumstance circumstance circumstance based limit appearing anywhere in the U.S. Code, a state statute, a private agreement, or anywhere else. I don't know where they get that, but here's the key aspect from Barrett. Barrett basically says that what so means is it's just kind of emphasizing the statute. I mean, the previous word, entitled so to obtain. So Van Buren's

account of so, namely that so references the previously stated manner or circumstance in the text, is more plausible than the government's so. So is not a free-floating term that provides a hook for any limitation stated anywhere. It to a stated identifiable proposition from the preceding text indeed so typically represents a word or phrase already employed thereby avoiding the need for repetition um in other words it's just kind of a emphasis word. See, and I don't think so. I think so actually means that. Okay. You can't just switch out those words there,

but so is referring to the thing that you obtained. Entitled to obtain that thing that you obtained. Entitled so to obtain. So so means is referring to the thing that you obtained. So how would you have ruled on this case? I'm with the dissent, though it's not about the word so, which also the dissent finds. They're all about whether you're entitled to it. This entitled so to obtain, and the majority is way too focused on the word so, which again, I just think refers as a pronoun. I don't know what the right term is for that. A pronoun for the thing that you

obtained. It's not doing a whole lot of work. It's just referring back to whatever you obtained. Entitled should be doing the majority of the work. And the question is whether Van Buren was entitled to what he obtained. And the answer is no. And the reason he wasn't entitled to it is because he took money. It was not for a reason that fell within his work, like why he was given access to it. Access is not the same as entitled. And so I think Thomas has the right idea here, along with Alito and Roberts. Now, what is interesting about this for me, David, is that normally I am pretty literalist, textualist, as you know, and therefore team up with Justice Gorsuch even on sort of some of these

more like sideways opinions and how they come out. But on this one, like, I guess I would be happy to be literalist and let Van Buren off the hook if I thought so meant anything other than the record. So, so, uh, uh, given that the word entitled to me means different, something different than access. And I am with Justice Thomas that, as he says, the question here is straightforward. Would an ordinary reader of the English language understand Van Buren to have exceeded authorized access to the database when he used it under circumstances that were expressly forbidden? In my view, the answer is yes. The necessary precondition that permitted him to obtain that data was absent.

Agreed. Yeah, I find that very persuasive. I was mainly interested in this war over the word so just sort of as a quirk of the law. But if you're talking about or it's a quirk of this particular opinion and also as to why that word is even there, it feels like just a filler. It's almost like saying to access a computer with authorization and to use such access to obtain or alter information in the computer that the accuser is not entitled to obtain or alter. It just feels like a filler. But does a person of ordinary, and to be clear, a law has to be clear enough to where a person

of ordinary intelligence can read it and to understand what's prohibited. And if I'm a person of ordinary intelligence and I'm reading to understand whether or not this is prohibited, would I believe that I am entitled to obtain a license plate record in exchange for cash to determine if a stripper is a cop? I would believe that I'm not. Correct. Right, Sarah? Correct. Right, Sarah? Correct. And what makes this case so interesting is we put it in that bucket of cases. The bucket is getting very full of the two different strands of conservative interpretation, once again, not just running into each other, but resulting in different outcomes.

So you have the textualist resulting in different outcome than the original public meeting folks, or in this case, ordinary public meeting folks. And we're getting quite a few of these these days. I think that bucket's going to be overflowing soon. Yeah, it's very interesting because it's sort of a microcosm because you've got a majority of the court at this point that is originalist slash textualist to some degree. There's a difference between Roberts and Gorsuch and Roberts and Kavanaugh and Gorsuch and Barrett. I mean, they're not all exact. They're not originalist bot 9000. They have different judicial philosophies to some degree.

And what you're seeing is kind of what you see when you watch a particularly interesting FedSoc debate. Not everyone in the Federalist Society agrees with the interpretation of any given sentence, particularly when sentences are not particularly well-drafted. One of the issues, and we've gone back to this time and time again,

one of the issues when you're a textualist slash originalist is that you're often interacting with quite a few texts that are not particularly well-crafted texts. The legislative process does not always yield crisp language. And so what do you do? You're going to end up with conflicting interpretations, even approaching the text from a very similar philosophical standpoint. And we're going to see this more and more, I think, under this court. Agreed.

All right. Well, Thomas lost. Barrett won. Van Buren violated department policy, but he will only have exceeded authorized access when he accesses a computer with authorization, but then obtains information located in particular areas of the computer, such as files, folders, or databases that are off limits to him. Still, however, bribery is a thing.

Bribery is still a thing. Bribery is still a thing. Yeah, absolutely. Okay. Shall we move on to the weirdness at Stanford Law School? Yeah, the Stanford weirdness. Let's do it. Yep. Do you want to start or me? Why don't you start with the complaint and I'll then explain why that's not the whole story. Yes. Okay. All right. So Twitter blew up yesterday when FIRE, and full disclosure, I'm a former president of FIRE. I was the very first lawyer in the FIRE legal network launching their speech code litigation project. So, and Greg Lukianoff, the president of FIRE, is a very good friend.

I have lots of friends at FIRE. So, that's the disclosure about FIRE. So, FIRE, on June 2nd, yesterday, puts out a press release that lights up Twitter. And I'll just start right here. Stanford University law student Nicholas Wallace was set to graduate this month, but his degree is now in jeopardy. After receiving a complaint about a satirical email that Wallace sent to his peers in January, Stanford launched an investigation into Wallace. His degree is now on hold, while the university determines whether

he violated school policies by mocking Senator Josh Hawley, Texas Attorney General Ken Paxton, in the law school's chapter of the Federalist Society. Now, the complaint or the press release from FIRE, it's very, very straightforward. What happens if you're look if you're reading the the the account on january 25th of this year um wallace sent an email it looks it's it's formatted like a federalist society flyer and it is a obvious parody it says the originalist case for inciting insurrection, Tuesday, January 6th, 1245. Now again, so he's sending this thing out on January 25th. It's dated January 6th. It says in, it has a picture of Ken Paxton, Attorney General of Texas. It has a picture of Josh Hawley with that raised fist salute to the insurrectionary crowd

at January 6th. And it says, riot information will be emailed the morning of the event. Please join the Stanford Federalist Society as we welcome Senator Joshua Hawley and Texas Attorney General Ken Paxton to discuss violent insurrection. Violent insurrection, also known as doing a coup, is a classical system of installing a government. Although widely believed to conflict in every way with the rule of law, violent insurrection can be an effective approach to upholding the principle of limited government. So it's obvious satire, but is often the case with obvious satire.

Some people, and we remember when we had the Babylon Bee founder on months and months and months ago, which was frequently fact-checked by Snopes, some people don't get it. So some people didn't get it. This turned out to be fact-checked, I believe, including at USA Today. But it was obvious satire, obviously constitutionally protected speech, although Stanford's not a public university. We'll get to that. although Stanford's not a public university. We'll get to that.

And then, so the Federalist Society files a complaint about this flyer. It's a complaint that is focused entirely on the flyer, talks about how people got confused about it. Stanford's then automatic investigation process seems to lock in, which includes, say, a hold on the diploma. FIRE publicizes this. Everyone freaks out on Twitter. Stanford relents, says that Wallace is going to be able to graduate. So this is super straightforward if those are the entirety of the facts. Stanford, which by the way is subject to in California, the Leonard Law, imposes First Amendment obligations even on private colleges that are not religious colleges.

So this would be a protected speech parody. The Federalist Society complains about protected speech. Stanford appears to take action against the protected speech. All of that's a no-go, y'all. Parody is protected. Satire is protected. You can't take punitive action against satire. And then when the outrage begins, Stanford relents, Wallace is going to get

to graduate, end of incident. Right? Right. Well, maybe there's more to this that we need to get into. So Sarah, take it away. So legally, that's the complaint they filed. That's what it is. And I think the Leonard Law stuff is interesting and we should dive in a little more into that maybe. But what happened at Stanford Law School in January of this year went way beyond that one flyer. I've had a student forward me a bunch of other emails that went around the school that month.

And the short, the punchline is that every few days, the Federalist Society students were getting bullied and harassed and their events were getting targeted. Here's one from January 20th. We demand that the Federalist Society, a white supremacist organization whose national membership directly and deliberately partook in sedition

and knowingly undermined our democracy, be deplatformed and no longer recognized as an official Stanford Law School student group. Then here's from January 14th, so a few days before that warning. This involves someone who lives in my house. I am writing to inquire why Stanford Law School is signing off on the Below event featuring Scott Keller, apparently a lifelong advocate of white supremacy. After last

week's siege of the Capitol, you described to the law school how we have seen some who shred the fabric of our democracy. This week, the law school providing a platform to one of those people. I am not merely pointing out a difference in political views between me and Keller. I am saying that Keller has proven himself to be a white supremacist. And I would like to know if SLS will establish any boundaries on what kind of, quote, debates with what kind of, quote, advocates it's willing to have. What happens if FedSoc wants to invite some of its other esteemed

members, like Ted Cruz himself? As our mainstream political culture continues to include more and more fascist elements, what safeguards will SLS put in place? Let's see, then this is January 23rd. First, mind you, FedSoc is white supremacist and needs to be deplatformed as three days earlier. Three days later. First, concerning our demand that the Federalist Society,

a white supremacist organization whose national membership directly and deliberately took part in sedition and knowingly undermined our democracy be deplatformed and no longer be recognized as an official SLS student group,

end quote, we now see that this demand would empower Stanford Law School to remove or punish any student group they see as undesirable. Sad that took you 72 hours. This expansion of institutional power ultimately carries a real potential to harm BIPOC groups

fighting for justice at Stanford Law School. No duh. While we retract the demand for Stanford to de-platform FedSoc, we encourage the SLS community to educate and empower themselves to de-platform FedSoc by boycotting their events and resisting their influence at the law school and beyond. Okay. Yeah. And then you have that flyer that you mentioned, David. So here's my question to you as the former president of FIRE.

Right. So here's my question to you as the former president of FIRE. Right. What ability does a school have to prevent harassment and bullying? I'm not necessarily saying that this rises to that level, though I think it could. We're talking about a one-week period here where I just read three emails. Oh, I'm sorry. I missed one email. Let's,

this one too. So this law student who I believe is the, uh, well, I'm not sure what he is. Um, he was doing an inaugural kickoff of a group called the Stanford Law Conservatives. Our mission is to advocate for conservative values in the study and practice of law. We believe that Anglo-American conservatism is a distinct intellectual tradition from those of the modern Republican Party, libertarianism, originalism, and judicial minimalism. Our group's goals are to study, explore, and discuss the deep roots of this intellectual tradition, blah, blah, blah. Student responds to the full law school. uh, blah, blah, blah. Student responds to the full law school. Ray Anglo-American tradition. I encourage all of us to interpret that as a dog whistle for literal white supremacy in solidarity and forever derisive, disdainful, and dismissive of parading

conservative quote, intellectualism as an excuse for anti-black settler, colonial misogyny. The original student responds and says the use of Anglo-American is common in 2006. Then Senator Barack Obama used it in a speech on the Senate floor in describing the writ of habeas corpus. I regret having to bother so many people with a simple misunderstanding, which could have easily been cleared up through personal communication. Okay. So the point being, David, you have this war going on in the student body where one part of the student body decides repeatedly and in consecutive days to publicly attack other students as white supremacists over and over and over and over again. over and over again. What can or should a school be able to do about that? And again, I think a lot of people would say like, okay, they're being attacked for being conservatives. Like they should be able to take it. It's a political debate. I don't know that I disagree with that point,

but legally I'm curious because imagine that they're being attacked because they're gay or because they're immigrants or for some other quality that these students find offensive or because they support Israel, for instance. What is the ability of the school to create a conducive environment to learning and education and the exchange of ideas without running afoul of the California's Leonard Law? Yeah, that's a really good question. So the short answer is there's no real, I don't think there's anything close to a legally viable argument that what that exchange of emails constitutes is harassment of any or bullying. What's interesting to me about it as you look at it, it talks about your quote-unquote a white supremacist organization.

That's making an allegation, an assertion of opinion based on the political positions of the group that you belong to or the effect of those political positions. If it was saying, if you were talking about the Federalist Society and then were making an explicit attack on the racial composition of the Federalist Society itself, you would start to get closer to it. But as a general matter, this is just strident argument and obnoxious. What if they were contacting these students, the judges that they were going to clerk for the law firms that they were going to go work for and say, you're hiring white supremacists and we plan to, you know, make it clear that your law firm supports white supremacy or whatever. Yeah. That's, I mean, that goes back to something we talked about

that happened. That kind of stuff happened when I was in law school. Yes. Yes. But can the school say like, well, we want all of our students to be able to get jobs and clerkships, so that's not in the interest of the school? You know, there is a difference between, say, a dean saying, hey, can we get in a room and talk this out? And a dean saying, student X or Y, stop emailing like that. And so I do think that there is a role, there's an educational role that a institution can play in trying to get people, say, in a room to talk about civility and discourse, to talk about, you know, for lack of a better term, talk about the dangers and perils of cancel culture, to talk through the wisdom of what they're doing. But as far as actually bringing someone in for punishment for this kind of exchange, I mean, it's really, it's not even a close constitutional call at at all uh this is the kind of thing and this

is a kind of rhetoric that's been wielded against folks forever um i remember speaking at berkeley years ago this was before i was even at national review full-time and i was protested as a homophobe and war criminal. War criminal, Sarah. This kind of over-the-top rhetoric and this kind of over-the-top sort of exchange is par for the course in political discourse and debate, not just in colleges and universities, but on random folks' Facebook walls. Doesn't mean that there isn't a role for people to say, hey, we need to have a conversation about

civility and decency on this campus. But as far as it coming close to anything like harassment. Now, what would harassment be? Harassment would be, imagine if somebody is trying to walk to class or participate in class and they're being constantly shouted down as a white supremacist or constantly someone is banging pots and pans outside their dorm room door to keep them awake because they're a white supremacist. Then you actually have some harassment slash bullying concerns that are related to sort of the time, place, and manner of the protesting speech, more so than the content of the protesting speech. But these kinds of exchanges, it's just like, you know, Tuesday in elite education. And it's been like that for a long, long, long time. I found it interesting that the Stanford students did not try to make a bullying or harassment claim and instead went the route that they did,

only used the satirical flyer. Kind of an odd choice because I think that they're getting, you know, sort of fairly mocked online for being really illiberal. And in fact, I think their complaint is different than that. And I think they would have been better off either doing nothing and allowing the school to handle it as the school saw fit or asking the school privately to, as you said, emphasize civility more, whatever else. But what they did instead was a pretty good example of the Streisand effect.

And for those who are just curious about the history of that term, in 2003, Barbara Streisand sued two photographers for violation of privacy. It was a $50 million lawsuit of photographs of her mansion. And of course, since she did that, public knowledge of the pictures increased greatly. And half a million people saw them. So, I mean, what's happened is that this Stanford flyer with the satirical FedSoc thing was all over Twitter last night.

To what end? Like, yeah. So, you know, it's interesting because I, it's hard that the making the complaint, what was so mystifying to me was you had these students who made a complaint about a poster that, I mean, you read it, it's obviously satirical. And the fact that some people miss obvious satire, I mean, that just happens all the time. It's happened to The Onion. It's happened to The Babylon Bee. I mean, it just happens.

But a reasonable person reading that, it's obvious satire, obviously protected speech under any kind of free speech environment. under any kind of free speech environment. And I can easily imagine a counterfactual here, and that is rather than trying to shut down this other student or making this formal complaint about this other student, instead the Stanford Fed Soc writes an article about the atmosphere of intolerance at Stanford towards the Federalist Society. And there'd be any number of conservative outlets that would be very happy to expose all of

the ways in which this band of FedSoc students had been mistreated, called white supremacists. They were demanded to be deplatformed until the reversal 72 hours later. There's a lot of room for discourse about, look, I mean, we're people who had nothing to do with January 6th. We reject January 6th. In fact, Sarah, as I argued in Time Magazine,

but for a lot of these FedSoc judges and lawyers, the whole election contest could have turned out a lot worse. In fact, it was a lot of the members of the conservative legal movement who stopped the Trump arguments in their tracks. And so the actual story of the Federalist Society and the election challenges is very different than maybe what some of these progressive students were arguing in Stanford. And so there's a story to be told about name-calling and intolerance and harassment in the colloquial, not legal sense of the term, harassment. And so I'm mystified, honestly, by this complaint. You know, I just wonder what kind of advice they were getting. Fortunately, you know, fortunately for the folks who made this mistake, they're, you know, on the complaint itself, their identities are redacted. So, you know, I think their names are going to be, can be known, but are not widely known. Uh, but yeah, I, I I'm, I'm kind of mystified in some ways by this whole affair. Well, we got a lot of emails about it. Box checked. We discussed it. Yes, we did.

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barring the Small Business Administration from prioritizing applications for COVID-19 relief based upon the race or sex of the business owner applying for the relief. You've got stuff to say about this. based upon the race or sex of the business owner applying for the relief. You've got stuff to say about this. Yes. So I just thought the outcome of this was pretty much as expected, right? Judge Thapar finds that you cannot have racial and gender classifications

for giving this government money for COVID relief. uh, classifications for giving this government money for COVID relief. Um, but I, before we get to what was in his opinion and, and the dissent, which I found interesting as well, I thought I'd walk through some of the cases that got us here. We've talked to some of them before, but, uh, Regents of the University of California v. Bakey is one that the dissent started with. v. Bakey is one that the dissent started with. It was an interesting case because people cite it sometimes for maybe not the proposition that it quite stands for there. The background here was about racial quotas in these higher education schools. Sounds familiar, right? And so the court held that allowing race as one of the several factors in college admissions policies was okay, affirmative action in general, but specific racial quotas, set asides, were not

okay. It was a very, very fractured opinion, which is why people who cite it should be maybe a little careful because there's six opinions in that case, and it's from 1978, and there's been a lot of stuff since then. So moving forward, you have Adirondack. That's 1995. This was on federal contracts, and it said that racial classifications imposed by the federal government fall under strict scrutiny. And you couldn't have these two-tiered systems for racial classifications. And interestingly, by the way, like you can put a little fun asterisk, you know, we've talked about incorporation where the Bill of Rights is incorporated against the states. This was actually reverse incorporation in which the Fifth Amendment's due process clause was held

to bind the federal government to the same standards as state and local governments are bound under the 14th Amendment. Fun! Reverse incorporation is a whole other podcast perhaps. Okay, so Adiran

is what you're going to hear cited the most when it comes to these COVID racial classifications because it's pretty spot on. But, now remember, strict scrutiny, we say, you know, strict in theory, fatal in fact, but like, doesn't have to be. In theory, the government could pass strict scrutiny. That gets us to parents involved. Another case you're going to hear plenty about in these 2007, it has what becomes the line from Justice Roberts that I have said before, which is, and actually I don't have it right in front of me, so it's a paraphrase, but it's pretty close. The best way to stop discrimination on the basis of race is to

stop discriminating on the basis of race. What Seattle School District did was allow every student to apply to every high school. But then certain schools, the better schools presumably, would become oversubscribed, and they would have to have some way to determine a tiebreaker for which students got into those popular schools. The second most important tiebreaker was race, so that they could maintain racial diversity at each school. So in parents involved, that was held as a no-no because it did not pass strict scrutiny. Okay, so fast forward, David, to the COVID restrictions. to the COVID restrictions.

So this is that people from presumptively disadvantaged groups have priority to the money that is limited and will run out. And it's racial classifications and gender classifications. And really, judge the par, I mean, it's a pretty quick slice and dice. It's like, no, this isn't even a close call, huh? Interestingly, the restaurant owner in question is, he is white, his wife is Hispanic, they each own 50%, but because she doesn't own 51%, they were not entitled to this priority consideration. And there's a racial presumption about it, obviously. But also, and I think this was maybe the PAR's larger point, is COVID, it was not narrowly tailored in the sense that COVID did not affect, was not itself discriminatory, I guess is the better way to put it. COVID was not government discrimination that was then being undone by this program.

And the dissent is arguing that like, yeah, okay, but that's way too narrow a focus. There has been discrimination in the past that was from the government. This is trying to undo that discrimination. But I think the problem with that is that this is COVID-specific relief that is intended to help restaurants affected by a pandemic. And it's a little hard to say how COVID was a discriminatory and it needs to be from the government, like government discrimination against these marginalized groups. Yeah, and there's so much about this that is troubling, including, so let me go to a paragraph from the opinion.

So the bar writes, the Small Business Administration has injected explicit racial and ethnic preferences into the priority process. has injected explicit racial and ethnic preferences into the priority process. Under regulation that predates the pandemic, the agency presumes certain applicants are socially disadvantaged based solely on their race or ethnicity. Groups that presumptively qualify as socially disadvantaged and thus get to jump to the front of the line for priority consideration include Black Americans, Hispanic Americansicans and then it gets like really nonsensically specific sarah asian pacific americans native americans and subcontinent asian americans and all of these are defined by reference to specific countries of origin. And as Zafar points out in his opinion, what this means is, for example,

somebody who's from India is going to be covered, but somebody who's from Afghanistan is not going to be covered. Yeah, I love this line. Indeed, the schedule of racial preferences detailed in the government's regulation, preferences for Pakistanis, but not Afghans, Japanese, but not Iraqis, Hispanics, but not Middle Easterners is not supported by any

record of evidence at all. Yeah, it is. It makes no sense. Like you're, you're more presumptively discriminated against if you're Jordan, if you're, if you're Pakistani than if you're Jordanian. if you're if you're pakistani than if you're jordanian um what what what are you talking about um and so it seems to me like this this decision which made very few waves uh in the news i mean there's just been a lot going on but what it illustrates is how some of this when people start to get into explicit ethnic slash racial line drawing some of the distinctions get nonsensical fast um i mean the idea for example that you're that you're um you know the idea that you're uh median Japanese, a person of Japanese descent is more socially disadvantaged than your median person of Afghan descent? What? and all kinds of sort of like, you know, sweeping, you know, disparate impact types of analyses. There's not much of an argument that, say, somebody from Afghanistan is presumptively doing better than somebody from Japan. You know, one of the wealthiest nations on the planet Earth and one of the poorest and most, you know,

racked by violence nations on planet Earth. So, again this this stuff doesn't on its face doesn't make sense and it's exactly right for the bar and the majority to call it out in my view exactly right and and it's why narrow tailoring it's why this could survive narrow tailoring as in it's not always it always fatal. You could have a racial classification pointing to a specific past discrimination by the government that is now trying to be remedied by the government, but it has to make sense and there has to be evidence and it has to be specific. This lacked all of those. Well, you know, so here so here here for example let i wrote um last weekend

about the tulsa race massacre um and there's an awful lot of dispute and argument about to what extent did did um state officials agents of the state play a role in actively participating in or failing to prevent or failing to prosecute. And well, there's no dispute that there was a failure to prosecute. I was going to say that one's pretty obvious. That one's very obvious. So there you have a failure of the state. You have a burned out district in a specific American city. district in a specific American city.

And in that circumstance, targeted race-based relief would be something that would pass strict scrutiny tied specifically to the failure of the state that was race-based. Yes. and so which is a large huge huge difference from presuming that someone of japanese descent is socially disadvantaged and presuming that someone of afghan or jordanian or iraqi or syrian descent is not um and there's just a vast and yawning gulf between those two things all right exciting podcast by the way i just want to provide a little update on mama sparrow here and yawning gulf between those two things. All right. Exciting podcast. By the way, I just want to provide a little update on Mama Sparrow here. She has been working so hard.

Dozens, dozens of little grubs brought to her babies. I will point out that dad showed up one time, sat next to me, watched her feed them, and provided no help. Man. Man. Yeah. Terrible. Yeah.

As long as we're talking about terrible things. Yeah. Netflix canceled Jupiter's Legacy, Sarah. I was very sorry to hear that despite knowing nothing about that show except that it sounded like something you would have liked. Two days or one day after Jonah and I have an extended discussion of the moral code

advanced in Jupiter's Legacy, Netflix just goes and cancels it. Just completely blocking dozens of future conversations like that from happening across the United States of America. Oh, David, I have one other problem that we need to discuss on this podcast, even though technically the problem wasn't on this podcast. It turns out that people listen to our podcasts in the car with their kids in the car. And on the Dispatch podcast last week,

we were interviewing someone about guns, sort of just the history, the law, everything about gun rights in this country. And I told a specific story about my history with Santa Claus, which related to guns. And I just want to say, didn't think about the fact that kids could be listening and now feel so terrible about it. If your kids were at all scarred by that, shoot me an email. I am happy to try to fix the problem.

And from now on, if there is anything non-kid friendly, we will, I will do better. How can you fix that problem sarah once the truth is known the truth is known the truth that santa claus is awesome yeah uh-huh okay all right notice i was cryptic about the truth i was cryptic about there. The truth is out there. Okay. Well, I wonder, that's an interesting question. If you listen to advisory opinions with your kids,

a legal nerd podcast with your kids, shoot us a message because I think you're probably awesome and you're a great parent. Well, no, to be clear, I assume the kids are totally zoned out and then they hear Santa Claus and they're like, say what now? It's June? Is Santa coming? All right. Well, this has been a shorter advisory opinions in part because the Supreme Court, we can only talk about the word so, so much, Sarah. You realize what I mean? We are now clumping all of these big cases. They're going to all now come out on the same day and it's going to be a 14 hour AO coming up. Oh, it's going to be, it's going to be fantastic.

I can't wait. We're going to have emergency pod after emergency pod. It's going to be glorious, but not today. Not today. Uh, checking weather app. If you,

uh, there's like my little black dot and then a whole bunch of yellow and red coming my way. And it's like almost on top of me. Well, go enjoy the rain. And please, listeners, rate us on Apple Podcasts. Subscribe on Apple Podcasts. Check out thedispatch.com. And as always, Sarah, what is our new sign off?

Signee die, y'all. Thank you.