Judging Freedom - Affirmative Action Rejected by Supreme Court! Live Analysis

Episode Date: June 29, 2023

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Thank you. Hi everyone, Judge Andrew Napolitano here with Judging Freedom. Today is Thursday, June 29th, 2023. It's about 1230 in the afternoon here on the East Coast of the United States. So this is your hot topic. Well, more or less two for today. And that's the two rulings by the Supreme Court of the United States. One involving whether or not a postal worker has to deliver the mail on Sunday. I didn't even know the post office worked on Sunday. And the other, the big one is affirmative action. Can Harvard University and the University of North Carolina and just about every other college and university in the

country for that matter, discriminate on the basis of race in admission standards? First, the postal worker, which is brief, and then the affirmative action case, which will require me to present a fair amount of sophisticated analysis to you. So the postal worker works five days a week and belongs to a Christian religion, which prohibits him from working on Sunday. And he sued the post office to compel the post office to accommodate him. He wasn't looking for money. He was just looking for a different work schedule. He'll work any five days of the week that the post office wants, but not on Sunday. You would think that the post office, the federal government would accommodate him. No, they didn't. They told him it was work on Sunday or take a hike. So he sued and he lost at the trial court and he lost at the appellate court, and he won at the Supreme

Court today, nine to nothing. Now, the case goes back to the trial court for a trial at which the trial court will craft something that the worker can live with to accommodate his religious practices and will tell the post office what to do. So it's not over. It is nearly over, but it is a significant victory for the personal free exercise of religion, which is guaranteed by the First Amendment. This will affect not only the post office, not only government employees, but all employees, all employers who are required to accommodate the legitimate, bona fide religious practices of their employees. Now, they don't have to do it under all circumstances. If it's going to cause them an undue financial hardship, they don't have to accommodate the religious needs. But short of

that, short of an undue financial hardship, which obviously the post office, which is bankrupt anyway, is not going to get more bankrupt because one guy works Monday through Friday instead of Wednesday through Sunday. As long as there's no undue financial hardship, the religious needs of the worker must be accommodated. That's now the law of the land for all employers in the United States, government and private. Okay, the affirmative action case, which is monumental, and for those of us who believe that the Constitution means what it says, triumphant. This involves Harvard University and the University of North Carolina. Harvard, which is, of course, a privately owned university, and the University of North Carolina,

which is owned by the state of North Carolina, both willingly concede that they make judgments based on race in their admissions process. In fact, race is one of four or five principal traits and characteristics that the admissions officers look for. They want a certain percentage of whites, a certain percentage of blacks, a certain percentage of Asians, a certain percentage of Latino and Latinas and other racial groups as well. The University of North Carolina, of course, is owned by the state of North Carolina, which is regulated by the 14th Amendment, which prohibits all the states and today everything that the states own from making decisions based on race. Harvard, parenthetically, is richer than the federal government if you take into account

the federal government's $31 trillion in debt. Harvard, nevertheless, receives directly or indirectly through student aid or through grants to professors to do research, about $100 million a year in federal funds. In return for the receipt of those federal funds, Harvard agrees in writing to abide by federal civil rights laws. So basically, Harvard has agreed that it will be subject to the same 14th Amendment prohibitions that are imposed on the states. Again, Harvard's private, but it agreed to abide by federal civil rights laws as if it were public. So now the question, can the two of them discriminate on the basis of race? And the answer is, for the most part, no. I disagree with the headlines that say racial classifications are out, affirmative action is dead. I wish those headlines were accurate, but they're not. So here's how the court works when you have decisions based on race. The court imposes a test called strict scrutiny,

and strict scrutiny is used whenever the behavior of the state or the federal government or someone in the shoes of the state or the federal government, as Harvard is here voluntarily, impairs a fundamental liberty or creates a suspect classification. As an example, if Harvard prohibited students from speaking out in favor of the re-election of Donald Trump, then the court would impose strict scrutiny. I'll explain in a minute what strict scrutiny is in order to evaluate whether Harvard's imposition is lawful or not. If the state of North Carolina prohibited students from speaking out in favor of the reelection of Joe Biden, the court would impose strict scrutiny. Why? Whenever a state

actor, North Carolina, or someone in the shoes of the state, Harvard accepting federal funds, impairs a fundamental liberty in my hypothetical free speech, the court imposes strict scrutiny. The other basis for the imposition of strict scrutiny is whenever the state actor, actually the state, North Carolina, or a private entity in the shoes of the state, in this case Harvard, creates a suspect classification, then strict scrutiny applies. What is a suspect classification? A suspect classification treats racial groups differently. So whenever the state, any state, any government, could be North Carolina, could be New York, New Jersey, California, it could be the state any state any government could be north carolina could be new york new jersey california it could be the state itself it could be a county it could be a municipality it could be something owned by the state like rutgers university which is owned by new jersey

or the university of north carolina which is owned by north Carolina. So whenever a state or an entity in the shoes of the state, Rutgers, or excuse me, Harvard, because it agreed by accepting the 100 million in federal aid to abide by federal civil rights laws. So whenever a state or an entity in the shoes of the state creates a suspect classification, makes a decision based on race, then the test is strict scrutiny. What is strict scrutiny? Ah, strict scrutiny is a test applied by the court intended to reduce to very, very, very, three verys, narrow circumstances under which the state can create a suspect classification. May the state ever, may Harvard ever use race as a basis for its admission standards? Answer, yes, but only if it can pass strict scrutiny. If it cannot pass strict scrutiny, which I will explain in a moment what that is,

if it cannot pass strict scrutiny, then it may not use race. If it can pass the strict scrutiny test, then it cannot use race. The interesting aspect to this is this was never the law before this. Before today, the law was that a diverse class of students, a freshman class of students, whether it's Harvard or North Carolina, whether it's Princeton or Rutgers, a diverse class of students is a legitimate goal of the state, and a legitimate goal of the state may be furthered by affirmative action. From and after today, that is not the case. From and after today, in order to comply with strict scrutiny, the state or a private entity in the shoes of the state, North Carolina or Harvard, must show that its need to discriminate on the basis of race is a compelling need, one that it must absolutely

exercise in order to maintain its educational mission. That is a very, very high bar over which the University of North Carolina and Harvard, and after today, every college and university in the United States must jump. So there are two aspects to strict scrutiny. The state or an entity in the shoes of the state must show a compelling interest, meaning if it doesn't do this, it can't operate the way it's been operating, it can't serve its purpose, and that that interest is served by the least restrictive alternative. So those are very, very narrow bases, very, very high bars, if you will, over which colleges and

universities from and after today have to jump. Is it impossible? No, it's not impossible. There is Supreme Court case law saying that a diverse student body is a compelling state interest. I don't think the court will automatically accept that any longer. It will now require colleges and universities to show that they have done everything conceivable in order to bring about a diverse student body without discriminating against other people. So if it wants to admit more Asians or more black Americans or more Latino and Latina Americans, it will have to show that it has attempted to do that without admitting fewer whites. Can you build more classrooms? Have you tried to build more

classrooms? Have you tried to build more classrooms? Have you tried to buy more land? Have you tried to put more students on there? Have you done everything conceivable to benefit the groups that have been harmed historically without impairing the group that has not been harmed historically? A high bar, but not an impossible one. One of you has written to me and said, are there any workarounds around this opinion? Yes, the workaround is would be to show that you have a compelling interest in a diverse class and you have exhausted all remedies available to you. So this does not bar absolutely affirmative action. It requires the state to jump through hoops by showing a compelling state interest served by the least

restrictive alternatives. So I'll give you some examples. Harvard, of course, by admitting certain racial groups is excluding other racial groups. Is there a way to admit the groups that you feel have been underserved in the past without harming the other groups? If they haven't considered that, they're going to fail this test. If they've considered it, what have they done to address it? We don't have any more room. Okay, you're Harvard. You're richer than the federal government. You're richer than the Vatican. Build some more classrooms. Build some more dorms. Have you considered the feasibility of doing that? If the answer is no or we don't want to do it, they're going to fail the test. So this does mean that the courts will impose a very, very high bar and a very exacting standard on colleges and universities

when this type of affirmative action is challenged. The other interesting question that one of you has written to me on says this, how far reaching is this decision? Does it affect areas outside of education? And the answer is, it is the state itself or is owned by the state, or all areas where the entity doing the discrimination is in the shoes of the state because it has accepted federal or state funds and has agreed to abide by federal civil rights laws. I've used as examples Harvard and Princeton, excuse me, Rutgers and Princeton. This case does not affect Rutgers and Princeton. Why? Well, because Rutgers and Princeton are in New Jersey, and New Jersey already has laws governing whether or not the schools may discriminate. New Jersey state law already imposes this duty on

Princeton and on Rutgers. So in the states where this is already the law, the colleges and universities there will experience no change. In the states where this is not the law, New Jersey may be, certainly is in the minority, it may be the only state in the union that does this. In the states where this is not the law, this will already, this will change the law. And of course, this strict scrutiny standard will be applied whenever the government, any government, or whenever a private entity receiving money from the government and having agreed to abide by federal and state civil rights laws wants to discriminate on the basis of race, they'll have to pass the strict scrutiny test. Is your goal

a compelling state interest, one without the achievement of which you cannot achieve your basic mission, which is the education of a well-rounded group of students? And are you serving this compelling state interest by the least restrictive alternative? Okay. The decision was six to three. Chief Justice Roberts wrote the opinion. It's about 65 pages long. The concurrences and the dissents take up another 200 pages. It is unusual for the concurrence here by Justice Clarence Thomas to be longer than the majority opinion. It is unusual for the dissents, the two dissents by Justice Sonia Sotomayor and Justice Katanji Brown Jackson to take up more space than the majority opinion.

The concurrence basically says what I believe, which is that the 14th Amendment means what it says. It prohibits always and everywhere, absolutely all discrimination based on race, even that which can pass strict scrutiny. So Justices Thomas and Gorsuch, who concurred in the result here, did not concur in the workaround, the, well, if you pass strict scrutiny, you can still discriminate. To Justice Clarence Thomas, to Justice Neil Gorsuch and to your humble correspondent, the 14th Amendment means what it says, and it removes all racial classification from the power of the state or those standing in the shoes of the state. But that's not the law. The law is what the Supreme Court said the law is today. If you pass strict scrutiny, you can discriminate. But strict scrutiny, as I've attempted to explain, is a very high bar.

Justices Sotomayor, Kagan, and Jackson dissented. These are rigorous, rigorous, stinging dissents. Justice Sotomayor has very, very harsh words for her colleagues in the majority, basically arguing that what's wrong with you? Don't you see the discrimination in society? And don't you see the value of colleges and universities undoing that discrimination in society by educating a broad array of students. Don't you understand that just because somebody gets into a college or a university under a racial quota doesn't mean that they're not qualified to be there? Don't you realize, Justice Sotomayor says, that four years

at a place like Harvard or four years at a place like the University of North Carolina can change a person's heart as well as a person's mind. And this is a positive good for society. To which the majority says, okay, everything you say might be right, but that's not in the Constitution and that's not in the 14th Amendment. And our job is not to make policy and our job is not to tell schools how they should operate. Our job is to decide what is consistent with the Constitution and what is not. Justice Katanji Brown Jackson, she's the newest member of the court who was appointed by President wrote a very, very harsh and very personal dissent. She did not participate in the portion of the case that addressed Harvard because in the years that Harvard's behavior was under scrutiny,

she's not only a graduate of Harvard Law School, she was on the Harvard Board of Overseers, their board of trustees. So she was actually part of Harvard management that made these decisions based on race. So obviously that would be a conflict. She didn't participate, but she did argue very, very forcefully and very strongly in her dissent, the same as Justice Sotomayor. But she revealed some things about her thinking, which might have upset a lot of the senators who voted to confirm her. She said, basically, the United States of America is a racist society, and the legacy of slavery has not left us, and we need to do everything possible, including putting our thumb on the

scale of college admissions in order to address this imbalance. Justice Katanji Brown Jackson basically believes in what's called critical race theory, which teaches that the American law enforcement and judicial system, the American legal system, American laws are racist at their core because they were written by white people for white people and interpreted by white people for white people. To me, this is hogwash. When I taught legal philosophy at Seton Hall Law School and at Brooklyn Law School, I taught a section on critical race theory because they require you to teach it. And I taught it as fairly as I could so the students can decide, is there any benefit to this or is it hogwash? It's important for students and

lawyers and judges to understand this. But I have never seen a jurist on the Supreme Court of the United States argue that the United States of America is still racist to its core. That's my interpretation of what Justice Katanji Brown Jackson wrote. I thought it was inappropriate and out of place. I'm sure you'll hear a lot more about this as we proceed. So to sum up, the postal worker gets his day in court because the judge that threw the case out was told by the Supreme Court, no, no, no, the post office has to accommodate his religious concerns. Let him work on Monday instead of on Sunday. What's wrong with you, as my grandmother, Louise Duva Caruso would have said. And as for affirmative action, it will be very, very, very, three verys difficult for universities, state and private that accept federal funds, which is nearly

all of them, to discriminate on the basis of race. It won't be impossible. They have to meet that very difficult, strict scrutiny standard. But if they can meet it, then they can get away with it. More as we get it. Scott Ritter here live, 1.30 Eastern this afternoon. Back to Ukraine. Judge Napolitano for Judging Freedom. Thanks for watching!