Page 1 ACS July 12, 2013 12:00 p.m. ET Operator: Good afternoon and welcome to the What s Next series Affirmative Action in the Wake of Fisher Conference Call. All lines have been placed on mute to prevent any background noise. After the speakers remarks, there will be a question and answer session. If you would like to ask a question during this time, simply press star then the number one on your telephone keypad. If you would like to withdraw your question, press the pound key. Thank you. Mr. Alexiou, you may begin your conference. Nicholas Alexiou: Welcome, everyone. My name is Nicholas Alexiou, I'm the assistant directory of Lawyer Chapters here at the American Constitution Society. We're so pleased you joined us for our third installment of our What's Next series, What's Next Affirmative Action and the Wake of Fisher. We're very excited to have with us Gene Nichol today. Gene is a Boyd Tinsley distinguished professor of law and director of the Center on Poverty Work and Opportunity at the University of North Carolina Law school where he teaches constitutional law in federal courts. Gene also has a unique perspective and that he have a lot of higher education experience in terms of administrative staff. So, Gene was the dean of UNC School of Law from 1999 to 2005. He was also the 26th president of the College of William and Mary and has also served as the dean of the University of Colorado. He also founded the Byron White Center for Constitutional Law at the University of Colorado and the Center for Civil Rights in the University of North Carolina.
Page 2 So, Gene will be able to provide us with both a constitutional law perspective and a more practical perspective on Affirmative Action Higher Education the Wake of Fisher. So Gene, take it away. Gene Nichol: Thanks a lot, Nick. It might be true that I can offer these various perspectives having been a dean and a president for at least a while. But it's also true that as everyone in the call knows that deans and presidents don t really have a very strong grasp of what they're talking about. So, I would expect a great deal on that front. I do want to add my welcome to everybody and maybe give a modest cheer for the American Constitution Society and all its great work, maybe this program accepted. It's my assignment to talk about racial affirmative action in higher education admissions, more poignantly -- and I guess, I think almost exclusively about the case of Abigail Fisher against what happens to be my alma mater the University of Texas, as you all know, which was decided by the Supreme Court on June 24th as the close of term neared. Beyond the usual hazards one might have in talking about new decision for my part, I could add the obvious concern that almost everybody knows a great deal about the Fisher case. And second, there's a pretty broad consensus even after the long wait that the court didn t say as much as people thought it would for good or ill where some people think it didn t say much of importance at all. So, both those realities make my task maybe a little tougher. But thinking as we begin, I'm thinking of course as the Lone Star State as this case (reminds). It occurred to me to recall that as George W. Bush taught us anything, it's the value of low expectations. So with that, I will get started. Fisher and here, given what I've said, I'll be brief, sort of summarizing ruling, but Ms. Fisher who was white challenged the University of Texas admissions program claiming she was denied admission to the undergraduate class in Austin because of her race. Texas won at the trial court level based on a reported application of Grutter, the Fifth Circuit in an opinion by Judge
Page 3 Higginbotham, the firm the district courts grant a summary judgment for the university. And the Supreme Court, as you think you all know by a surprising seven to one majority in the lead opinion, of course, written by Anthony Kennedy held that the Fifth Circuit have failed to apply sufficiently rigorous scrutiny in the decision below demanding maybe it's fair to say the strictest equal protection scrutiny rather than that Justice O Connor initiated somewhat difference laden strict scrutiny of Grutter. And so, the decision was vacated and remanded for further proceedings. Now to fill that out just a little, Justice Kennedy as I said surprisingly joined not only by Justices Alito, Roberts, Scalia and Thomas but Justices Breyer and Sotomayor as well with only Justice Ginsburg dissenting as Justice Kagan had recused herself. Kennedy tracedtexas interesting admissions program history moving from a personal achievement index methodology which had been developed after the Fifth Circuit s (Tuckwood) ruling in 1996 had outlawed of the use of race as a factor in decision making. Then famously the state legislature introduced its Top 10 Percent Law granting automatic admission to any public state college, including UT to Austin and the top 10 percent of Texas High School s meeting various standards. After Grutter was handed down a decade ago now in 2003, the University of Texas decided it could do more to diversify its class. So, it reintroduce race as a plus factor, seeking overtly to follow Grutter s guidance in what was thought to be a holistic process, but looking particularly at small classes between five and 24 students in developing an aggressive concept of the critical mass notion OK d in the Michigan case. The course then layering that over the statutorily demanded 10 percent rule which due in part Texas frequently segregated high schools had already produced a more divesting body than its predecessor. Under this regime, Ms. Fisher was denied admission in 2008 and she sued. She subsequently attended LSU and graduated. As a Texan I could say I suppose that being forced to go to LSU instead of Austin was thought to impose a particular and
Page 4 deep and pointed wound on the plaintiff that I can perhaps comprehend even if I disagree with her position in the lawsuit. On the good news front, Justice Kennedy again embraced, without apology. Justice Powell s earlier assertion in Bockee that the pursuit of a diverse body for a public university is a compelling state interest. Kenndy wrote, and I quote, in (Groates) and Grutter, the court endorsed precepts stated by Justice Powell reaffirming his conclusion that obtaining the educational benefits of a diverse student body is a compelling state interest that can justify the use of race in university admissions. Now admittedly, Justice Kennedy once again began his opinion like he had done in some of the abortion cases with the odd (faint) that quote we take Bockee and Grutter as given for purposes of deciding the case. So, Justice Scalia and Thomas and Roberts, and Alito can subsequently muffle their embrace of the holding when their perceptions of future duty calls. And it was repeatedly noted in the opinions and the concurrences that Ms. Fisher had not asked that Grutter be overruled as if that would somehow have bound enthusiastic Justices. Still it seems to me that it can t have caused anything but a pointed heartburn in the Roberts, Alito, Scalia and Thomas quarters to see (senses) embracing the compelling nature of diversity as a state interest appeared in an opinion to which their names were attached. And whatever else, the idea that the search for diversity in the student cohort is a compelling state interest. The idea on which all university affirmative action programs literally depend it seems to me is substantially more secure today than it was three weeks ago, and given Roberts opinion and parents involved that s saying something, I think something significant. Then on the (testee) side, Justice Kennedy wrote that Grutter s conclusion that a university educational judgment that diversity is essential to an educational mission is one to which we defer is more limited than the Fifth Circuit had assumed. Kennedy wrote that there must be further judicial determination that the admissions process meets strict scrutiny in its
Page 5 implementation, the means chosen must be narrowly tailored, and on this point the university receives no deference whatsoever. It must therefore be necessary for a university to use race to achieve diversity. The reviewing court must ultimately be satisfied that no workable race-based alternative would produce the educational benefits of diversity that we saw. The Fifth Circuit instead, he ruled, and what may have been at least a little unkind of a Fifth Circuit had asked only whether the university s decision to reintroduce race was made in good faith. Most telling, Kennedy concluded, the higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other context. Accordingly, the district court and the court of appeals ad confined strict review too narrowly. So, the decision below was vacated with fairness to the litigants was said to require that the case be remanded to be judged under the appropriate standard and there it shall go perhaps to the satisfaction of no one. I'll make maybe a half dozen or so points about Fisher before opening up the floor. First, Fisher it seems to me falls (per se) without much discussion. To the oddities of most of the courts, other affirmative action decisions, just quickly to illustrate, Abigail Fisher had notable standing and justiciability problems which the Justices once again principally chose to ignore. There was no chance that she'd now enrolled in the University of Texas undergraduate program if she d won. She admitted as much. It looked like any damage claims she might have would be limited to her admissions deposit for which is unclear I would think there would be any 1983 liability or if the 11 th Amendment wouldn t intervene. The court overlooked those niceties in the apparent belief that those challenging affirmative action programs once again don t actually have to demonstrate concrete regressibility unlike other article three plaintiffs. That s where I've come to -- I used to do a lot of standing here and it s where I've come to think of as the special preference for litigants to challenge special preferences. Understanding isn t required for affirmative action challenges,
Page 6 neither for originalists it seems nor is originalism required. Justice Scalia and Thomas are more than adamant that the use of race in affirmative action is in effect per se unconstitutional. For state institutions, that can be hard to square with the steaming intentions of the framers of the 14th amendment. So, in that instance the theory of originalism is to be submerged or ignored or affirmative action by the federal government in cases like (Hatteran) the notion that the text and history outlaw the practice of affirmative action is preposterous. So, for the day again, originalism departs away like chastity. And once again, the backdrop of racial neutrality that the court assumes to be the constitutional set point against which to measure worrisome affirmative action departures is itself riddled with bias. And as Justice Ginsburg mocked in her dissent the notion that the Texas 10 percent rule is race neutral, born as it was in racial remedy and effective as it is mainly as a result of segregated public schools, requires a legal mind and in the sense that Thomas Reed Powell joked about the term. And more broadly, kind of moving in the other direction, Texas, Michigan and Virginia and Carolina where I work and other publics constantly deploy legacy preferences which apparently according to the research of the last five years have a larger impact on the admissions process than racial affirmative action. It's just an impact, it massively favors white wealthy applicants. (I will) suppose it's the natural order of things. The practice that unlike affirmative action cannot possibly be squared with constitutional principle, what legitimate equality based admissions process can begin with the questions who's your daddy. But Fisher, if it has any shortcomings that has in common with almost all of the affirmative action rulings. Next, I d say a word about the lineup and perhaps the unfolding strategy. Most, including me or maybe especially me were surprised at the (settled) one arrangement. As I've indicated on the one hand, Justices Alito and Roberts signed on to the Kennedy opinion. You know, I admit it has the lawful room
Page 7 of assumptions and concessions, but unlike Justices Scalia and Thomas, they didn t even write separately. Though it is difficult to believe, they actually accept on their own the notion of diversity in the student body as a compelling interest. As surprising for me, Justices Breyer and Sotomayor signed on readily despite the much elevated scrutiny that Kennedy demands. That seems to me a changed where Justice Breyer, who you might recall in parents involved wrote that a contextual approach to scrutiny is altogether a fitting and affirmative action cases which is not strict in the traditional sense of that word. It's more guess work, I would think for Justice Sotomayor, but I wouldn t have guessed this result. So maybe this does represent some kind of grand bargain or modest brand bargain or compromise in the old fashioned sense in which some folks actually move from earlier positions in order to gain more companionship. I d be the last to know about that, but I guess it is possible. And following up, there's the perennial central question of American constitutional law at least modern American constitutional law. What does Anthony Kennedy really want. Is his goal, Justice Kennedy s in Fisher to save the affirmative action but just to make it tighter and more restrictive, more rigorously grounded, less overarching, less presumptively permissible, less sloppy or remembering that despite his kind words for diversity, he seems never to admit an affirmative action program he was actually willing to stomach in operation. Is he out to save but restrict affirmative action or is he really out to do an affirmative action without taking the political heat that might occur from announcing that you're doing so. I don t know what the answer to that is, though I lean more frequently to the latter assumption. Even with the DOMA case, I'm unable to join in the lionized Kennedy movement. I remind you only of Citizens United, Tuller Carhart, Sebelius, Shelby County and Bush against Gore I have to limit myself to half dozen. What it does seem fair to me to say is that Justice Kennedy is remarkably aggressive in his idiosyncrasy. Whatever it is that he thinks he has no trouble forcing it on the
Page 8 rest of us. Finally, because I think I'll basically stop with this except perhaps adding a word and only a word about the upcoming Michigan case. What about the impact of Fisher. Unlike what I've read in some quarters, I think it large it s mixed, I can say, that s mixed, but still large. The first reason for that, I've already suggested. I know it's possible, but it seems to me that despite the various proffered assumptions and concessions, Fisher does make it hard, at least for the next half dozen years or so to hand down a new decision rejecting diversity of the student body as a compelling state interest. That fact alone is not to be under valued. This diversity rationality even if it's odd, is the only pillar on which to build an affirmative action program or anything like the foreseeable future or perhaps ever. So, I'm heartened by that. But I also think on the other hand that the shift to in Justice O Connor s affirmative action framework in Grutter to Kennedy s in Fisher is maybe greater than some have claimed which is to say I ve always thought as some of the critics have argued that Grutter didn t actually demand any comprehensible notion of strict scrutiny. The embrace of deference to institutions of higher education, the leniency with which the critical mass notion was received and reviewed, the accepted or assumed equivalent treatment of areas racial categories, the eased application of notions of necessity, those have always indicated to me some more congenial intermediate formula of review. I wouldn t have said what it was, but I wouldn t have called it strict scrutiny. Justice Kennedy, obviously and I think overtly means to rejoin the strict scrutiny of the racial higher education affirmative action cases to the strict scrutiny of the racial set aside cases and more broadly to what he at least sees as the rest of the jurisprudence of the equal protection clause. This inevitably, even with the retention of diversity, moves the calculus a good deal closer to the strict in theory but fatal in fact shorthand. Thus, Kennedy s concluding statement that strict scrutiny must not be strict in theory but feeble in fact. Maybe another way of saying that is this, we now have a settled stated formula for deciding university affirmative action cases. Strict scrutiny,
Page 9 diversity as a compelling interest, the demand of necessary skepticism and necessary narrow tailoring and the like. What we don t have in my view is any Supreme Court opinion that has ever applied such a standard and upheld the program in question. (Inaudible) didn t do what Fisher requires, Grutter didn t do it, maybe (Groates) did but it invalidated the program. So, I don t think anyone can say was a great deal of confidence, what sort of existing complex multifaceted but necessarily bureaucratically implemented affirmative action program would next week pass constitutional muster in the federal courts, either at the Supreme Court level or any of its inferiors. And for me who has spent many years sadly working with university general councils, I'm even married to one. It is their job to be cautious in the face of liability. I know that the power of a university s commitment to affirmative action, the demand by the university and its faculty and its student body to be actually effectively integrated isn t just a legal question. And the cautions of university lawyers are not going to provide the conclusive answer to a university s response. That decision is thought to be too simple to the character and mission of the institution. And I am glad that that s so. But a candid general counsel will now say to an attentive president or a chancellor, if we are sued, the chances that we'll be able to successfully defend our ambitious affirmative action program after Fisher are much diminished or maybe much, much diminished today compared to two months ago. And for my money, that s bad news for American higher education. And I have little doubt, I may be wrong with this, but I have little doubt that that would be the result on at least an array of fronts on campuses across the country. Finally and last, I consider the (shuette) I think that s the way you pronounce it against the Coalition to Defend Affirmative Action, but you know, the case involving Michigan s voter approved ballot measure. It ordered state governments to stop using race as a factor in admissions to public colleges and universities which the court accepted for review next term.
Page 10 I consider that to be beyond the scope here thankfully. Whatever else the claim that Michigan has unconstitutionally altered the decision making framework for racial minorities and perhaps women through the use of this amendment, it's a markedly different question than that posed by Fisher. And that means it's different than the question faced by the great majority of universities across the United States. So, it's possible to have some hope, that the very strongly split circuit court decision invalidating the measure will be upheld. But I'm enough of a student of political rhetoric to think that the closer and closer the United States Supreme Court comes to saying that the constitution forbids affirmative action, and it does move closer to that result in real implemented terms in Fisher, the less likely it may be that the same court would conclude on whatever theory you have that it's unconstitutional for a state to prohibit affirmative action. So, Nick, I'll stop there and we can open it up for questions. Nicholas Alexiou: Thanks you so much, Gene. And I'll get things started with the question of my own. You mentioned Fisher was on the last case rendered on June 24th, but it was argued back in October. And so, we had an eight and a half month gap for a case that was seven to one and 13 pages. So, what do you think, do you think there's a broader opinion that eventually (lost) the coalition or what do you think took so long to have this result come out? Gene Nichol: Well, that s my guess. And I don t know the truth of it. I think that it's well, you could also ask the question more broadly given the way it came out, why was it picked up in the first place. If I was doing that kind of guess work, which I'm not good at, I would think that maybe four members of the court thought that they were going to get bigger result out of this, meaning they might have had a stronger chance of convincing Justice Kennedy to do Grutter in or to go further along that line. But I have no, you know, clue that that s actually so. But if that was true and they thought they were going to get more and they were able to pull that off, then you end up with this short -- but I think, I mean, maybe I m wrong about this, but I think pretty consequential ruling.
Page 11 But I'm guessing those four wouldn t have been tremendously happy with the single notion of having diversity as a compelling state interest kind of reratified. So, you know, it may well be true that everybody ended up somewhat disappointed in the outcome and description of this case, except Justice Kennedy, he's probably thrilled. Nicholas Alexiou: And in terms of what's next, you know, it's the title of the series. For Abigail Fisher, I mean, are we going to see her back at the Supreme Court in three years or is I mean, what do you think might happen to lower court and it's just ripe to be a return case in a few years. Gene Nichol: Well, not by my light. I think she's going to go back to the lower courts, and it's interesting to guess what might be the outcome given the altered framework which Justice Kennedy demands. I don t think it's certain that she wins in the lower court. It might perhaps be the case. But you know, there's a real oddity about that. What do you do, you go back to Texas, you go back to the Fifth Circuit, you go back to this report and have another series of rulings about plans that were in place some years ago. There's no money essentially at stake here. There's not an injunction in terms of the existing operation, I'm guessing. I mean, I think the University of Texas is likely changing its admissions program on a fairly regular basis. So, I think this will return to the particular factual picadillos of Texas and the 10 percent rule in the University of Texas and will not return to the United States Supreme Court. I'm guessing that most members of the court wish it had never shown up there in the first place. Nicholas Alexiou: Fair enough. And I think I wouldn t be doing my ACS job if I didn t mention there are two vacancies on the Fifth Circuit, perhaps a different panel will be rendering the decision next time around. So, why don t we open it up to questions. If anyone has a question, I believe, that you can press star one and the moderator can correct me if I'm incorrect on that. But go ahead and let's see if we can open it up to some questions from the field. Operator: Yes sir, that s star one to ask a question.
Page 12 Nicholas Alexiou: OK. So, if you have a question press star one and that will unmute you and you can ask away. Gene Nichol: (It s like my constitutional law class). Nicholas Alexiou: We can start calling on people if need be. Gene Nichol: Operator: (Ruben Garcia): It's hard, I can't see anyone. We have a question from the line of (Ruben Garcia). Hello, hello. Nicholas Alexiou: Yes, go ahead. (Ruben Garcia): Gene Nichol: This is (Ruben Garcia), I'm a professor at the University of Nevada Las Vegas. I d like to ask Gene a little about the public perception of this case, and perhaps how it might be shaped or how already it's been shaped as you know, a victory or a defeat by one side or the other. And I d like to know if you could address that in the context of the upcoming Michigan case and how you think the messages around that which is not necessarily technical constitutional law point, but obviously will be in the public perception really discussed more as another referendum on affirmative action. I wonder if you could address those points. I think now for me, the leap to the upcoming Michigan case is complex. Let me talk first about the reception of this decision. Some people who I respect very highly, I think I saw a piece by (Linda Greenhouse) to this effect, indicated that there's no real impact from the Fisher case that Justice Kennedy said he was applying law as it existed and she was taking him at his word. I rarely would disagree with someone as thoughtful and smart as she is, but I think that my own view Justice Kennedy was applying the law as he would have wanted to apply it in Grutter. I think he probably sees Justice O Connor s deferential application of the strict scrutiny standard in Grutter as a lark, as an exception which is unacceptable.
Page 13 And so, I think that the truth of it is this case turns the applicability of the affirmative action cases, the implementation of them to Kennedy s view rather than O Connor s view. And I think that s a pretty large difference. If you think about all of the various questions and components which go into an affirmative action program, you know, how you first of all maybe more easily how you define the goal of a diverse student body, but how you muster and you measure critical mass, how you treat one racial category concerning the critical mass. If on all these fronts, the university has to get it exactly right in the sense that a reviewing federal court would require and Justice Kennedy would agree with, including the bureaucratic implementation of these programs which inevitably involves some exercises of discretion. I think the chances, if Kennedy is serious about what he's demanding, the chances of a real stringent compelling state interest, strict scrutiny review, you know, a lot of affirmative action programs would fall at least in some of their particulars under that regime. So, for me, I've been surprised that so many folks who are friends to affirmative action have regarded this as no significant change. Now, as I said, I think it's got a dose of good medicine from both directions because it does really, I think embrace the notion of diversity as a compelling state interest in a way that makes it hard to just chuck it out in a couple of years. So, in part, I think, folks have underestimated the extent of which this elevated review will prove difficult for universities, and that there are going to be a lot of these lawsuits because even though the opponents of affirmative action didn t get exactly what they wanted, they ve got more to litigate from. I mean, it's what they do for a living. I don t know why they don t challenge legacy programs if they re so in the sort of deciding things by the numbers, but this is what these folks do. And so, I think there's going to be a lot of lawsuits and there will be significant number of lawsuits by universities. And so, I think that s worrisome and I think that result is probably more worrisome than the broad perception. On the other hand, for those who like I do seek to use these
Page 14 programs to effectively and successfully integrate more powerfully public and private higher education. I think the fact that you've had court after court now after how long has it been since Bockee. I mean, long, long time, including Justices of courts that are replete with Republican majorities, cling that the notion that achievement of diversity and body and higher education is a compelling state interest and that maybe you can say that Michigan and other constitutional amendments or uses of the initiative process and the like are at war with that notion. That s a pretty strong public rhetoric message to portray. You know, the frank truth of it is that it is the faculties and students, these institutions believe in the import and the necessity of a diverse student body, the students these days are powerfully committed to a notion of the diversity and body idea that they would have the opposite, seems as weird to them as spending all your time just fretting about gay marriage. So, I think those are powerful notions which ought to be put in the forefront anyway of the public debate. Nicholas Alexiou: Any other questions? If you like, just press star one to unmute yourself and get in the question queue. Operation: You have a question from the line of (Theodore McKay). (Theodore McKay): Hi, can you hear me? Nicholas Alexiou: Yes, go ahead. (Theodore McKay): Yes. This really just goes to the observation you just made and I share your quandary about why legacy seems to be out there some of a sacred cow that no one wants to take a shot at. But it seems to me that, and I wondered what you thought about this, it's a much more difficult burden because you can't get strict scrutiny there unless you can somehow show a specific intent to discriminate (disparate) impact doesn t get it for you anymore. And it's hard if not impossible to show specific intent. So you're left with rational basis and just I don t know how you would get a handle on what I think and I agree is a very perplexing disparate impact that arises from legacy
Page 15 policies. But because of what the court said about disparate impact not being enough, you have to show specific intent. I just don t know how you would win a case based on legacy assault. Gene Nichol: Judge, it's nice to hear from you. I'm a big admirer. (Theodore McKay): Thank you. Gene Nichol: Let me just say that I think I did a debate with someone about this a while back, and it's, you of course accurately described the structure of equal protection scrutiny as we have it right now. And I was inquiring of these folks why you know, I've been involved for maybe 30 years with this outfits who are constantly suing universities. And the truth is they know more about admissions policies across the United States than virtually anyone because they ve been engaged in litigation and they ve had discovery and Freedom of Information Act requests. So, the oddity to me is they know the pervasive use of legacy admissions across the United States -- they know it has a bigger impact than this affirmative action cases, these affirmative action programs that they challenge for a living. And they know it's a rank departure from what they say they believe in. But they choose to leave it alone, and that makes you almost think that they think well, because the facts on these legacy admissions in terms of the radically disproportionate impact between blacks and whites are astonishing, you know. All of these numbers of legacy admits were in high 90s in terms of white applicants and mainly wealthy white applicants. But what they would say when they had these debates is well, we didn t you know, you don t have the ready structure of race and strict scrutiny. You got the impact as you just rightly outlined, Judge. What we'll say is you know back when you started all these affirmative action litigation, you didn t have the framework of affirmative action being rigorously subjective necessarily to the compelling state interest test. Either you worked to beat the band to make sure that that became the case. So, why don t you work that way on legacy admits.
Page 16 We don t know everything about the framers, but we do have a pretty good sense of what they thought about discrimination by bloodline which is really what this is. They were it seems to me they were pretty strongly set against that. Like I've said before that the astonishing nature that we think you can have a constitutional admissions program which begins with the question who's your daddy is pretty overwhelming. So, I think we don t know that that would be subjected to the rigors of the compelling state interest test, but to say off handed that would be rejected, I don t I don t believe that will because it's so impossible to justify. I was the dean in a law school here at the University of North Carolina for a long time. I would imagine this and I must admit I worked against legacy admits in these various places. But imagine saying to one of the fathers of one of the kids of the state of North Carolina who wanted to go to this law school, but is excluded because of legacy admissions that well, yes sir your daughter or your son has an equal right to come to the University of North Carolina. It's just that you didn t come here, and so we're going to hold that against you. He said, I'm a taxpayer of the state of North Carolina. And then what the university would say is they have been candid as well, we think legacy admissions get us money. So, we would say to that daddy, yes your daughter has equal right to come here, but somebody purchased it, so you're not going to be able to exercise it. You know, it seems to me an honest and open inquiry in the legacy admissions would reject it out of hand as discrimination by bloodline. We wouldn t even need the categorical approach. I know why universities don t object to this. They think they sell themselves for money on it. I don t know why the all the various little shops around the United States who sue challenging racial affirmative action. I don t know why they don t challenge it. You know, the truth of it is I believe racial affirmative action is constitutional because it serves a very powerful goal of
Page 17 equality. I don t know what the argument in favor of legacy admissions for white people is. It's very hard to come up with any justification for it at all. Male: Gene Nichol: Very helpful and proper. Thank you. Thank you, judge. Nicholas Alexiou: We've got time for maybe one or two more questions. If anyone else has one, just press star one and that will get you unmuted. Operator: We have no questions at this time. Nicholas Alexiou: OK. Well, if we don t have any more questions, I think we'll wrap this up. Thank you to you, Gene Nichol for your insightful presentation and thank you for everyone who dialed in. Be sure to join us on Tuesday, July 30th for our next edition of the What's Next series, What's Next American Express and Access to Justice featuring Arthur Bryant, he's the executive director of Public Justice. And we hope to see you then or hear you then rather. Operator: This concludes today's conference call. You may now disconnect. END