Fisher v. University of Texas
Likes to say that this is case number. Eleven three forty five Fisher against the University of Texas at Austin. Hey everyone it's Leon. Nayef co-creator of fiasco in slow-burn this week's episode of five to four Peter and Michael are talking about Fisher University of Texas Supreme Court decision that encapsulates. The modern debate on Affirmative Action Abigail Fisher was rejected for admission. Even though some students with lower test scores and grades got in ahead of her Fisher helped transform equal protection clause MC tool that shielded the rights of freed slaves into a weapon used undermine civil rights. I hope the court rules that a student's race and ethnicity should not be considered when applying to the universities lost at three levels of the justice system but the supremes will take her side and cripple affirmative action. This is five to four podcast. About how much is important sucks. Welcome to five to four podcast where we dissect and analyze the terrible supreme court decisions whose collective weight have slowly crushed. The American soul like stones laid atop accused which I am heater. Twitter's law boy. I'm here with Michael Peter and from Austin Texas Ranan High and together. We are America's only sexually active lawyers. I think that's I think that's right now. I think that's right and we are covering. We are covering fisher. V Texas Affirmative Action Case from twenty thirteen and then also little bit later in two thousand sixteen. We thought it was important to cover primarily because it highlights how conservatives on the court have turned the equal protection clause which was meant to protect freed slaves essentially into a blood in against legislative attempts to promote diversity and correct for historical discrimination and also. Because it's sort of the story of a very very mediocre white girl who decided to bring her failure to get into the University of Texas to court and This is the sort of mediocrity that you don't see that often and I want to dive in. Tell us a little bit about Abigail Fisher enter. Yes Abigail Fisher into our lives in two thousand thirteen. She crashes on the scene and she is You know how in scarface there's a scene where already with you. Michelle pfeiffer 's character. She's like you know Tony you're just like the rest of them and she calls and she calls him like a racial epithet and he's like who you call in whatever you white piece of bread. Abigail Fisher's and so what's going on in Abigail Fisher's life in two thousand thirteen is that she's applying to the University of Texas like thirteen right before this. When did she apply will? Yeah Okay Okay Yeah. She's applied before age. She's applied before twenty thirteen and in Texas There's a law that they passed back in the nineties that required the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes Now when that law goes into effect the University of Texas looks than there resulting racial ethnic and cultural background of the undergraduate population at the school and compared to the rest of the state big surprise it turns out like everybody who's admitted the vast majority of people are white so The University of Texas looks at its policies. And they're like what can we do? We need to be admitting a more diverse student population something that looks a little bit more reflective of like the the state population as a whole and So they decide to modify their admissions policies so that for the rest of in state admission allotments. So we're talking about eight percent of in-state admitted students. The university will consider race as one of the factors ryen admission and in addition to things like you know socioeconomic status and right and all the usuals great activities and yeah or like if your parents went to the school or if your parents are donors to the school. Those things might be considered to know so Abigail Fisher gets Denied admission to ut under the system I don't know how important this is. But she had a three point. Five nine GPA. She had an eleven eighty sat score. She's all right all right. She's not a baby genius. This no that's like middling but it's also it's way below I mean. Ut is a strong school in its way below. I think it's well well. Below their twenty fifth percentile in both categories. Is that right yeah? They had like thirty thousand applicants that year and ten thousand or twelve thousand spots went to the top ten percent people. So you're talking twenty thousand applicants for two thousand spots. It's going to be very competitive. That's Ivy League level selectivity right and so also important to note. Though the day she gets rejected she calls a lawyer. She calls up like her dad's friend who just so happens to be like extremely into the idea of suing for affirmative action and has been looking for a case she's like hey we're in. Ewa. Where are you looking to sue about affirmative action? Well I just got. I just got rejected and I think it might be because I'm white. You won't believe this black and Hispanic people getting my school got into Ut. And I did not right. Yeah that's exactly right and there's a point to be made here I think That her family and sort of has the access and is rich enough to have a legal team like on speed dial but they clearly weren't rich enough to just bribe her into ut like just yeah where you can buy a lawn right but like everything at schools has some family name on it. And I just want to further contextualized her her scores. Because if you've got a lawyer on speed dial there's no doubt she had. Sat Prep and Shit like that. Right right that makes eleven eighty which is okay but not that impressive. Cemil say soft. That's if that's your like after deep prep score. Yeah I I'm not saying like am I am. I just be your score but like you have to. You have to live with that. That's what your life is going to be like. You can't. You'RE NOT GONNA sue your way to a fourteen hundred and you shouldn't be eager to put. That shouldn't like court documents. That are going to be recorded as they were like. We're going to put the eleven eighty and the court dockside be like. Actually let's just I'm just GONNA go. Which is where she goes so yes she calls up the lawyers and so that means that Edward Bloom is on the scene Mr Bloom is the founder of the project on fair representation which is A. It's a nonprofit organization and they basically do pro bono work looking for and representing plaintiffs to the Supreme Court so that they can shit on the Fourteenth Amendment This is also the project unfair representation there that people who also take shelby the voting rights case to the Supreme Court that same term. It really is really is like a white people's rights organization like obviously they don't frame it like that but You know the Shelby County. Voting rights case is a completely different area of the law. And it's very weird to be deep on like the white person side of both of those as one organization. Yeah it's it's almost like they are very concerned with you know. White People Status Being Supreme. In Our society nonprofit you have if your sat. Scores are in eleven eighty. And you're like how to stand up for this. So these guys at the at the project on fair representation. They're making the argument that the consideration of race in admissions policies. That's a violation of the fourteenth amendment's equal protection clause so ut's admission policies that take race into account that that's treating people of different races in a discriminatory way and as part of this day. Say publicly for months you can listen to her state as an interviews that people with lower test scores and lower. Gpa's than Abbey are admitted. And the only difference between those people and Abigail Fisher is that those students are people of Color I think it's really important to highlight that. That's it's fucking false like it's not right there completely ignoring facts on the ground. Which are that there. Were forty seven less than fifty forty-seven students with lower scores and grades than Abigail Fisher. Who were admitted that year to ut and of those forty seven forty two of them are fucking white people and worth noting so she's made public statements saying like I had classmates who were getting in. Who didn't have the WHO didn't have grades as strong as I did. It's like you had classmates. Some of those forty seven people in your classes and you knew who they were including the five minorities what happened is. She's third grade right what happened. She was like told her whole life by her. Undoubtedly kind of weird family right. You can sort of read between the lines here you know that this is like an affront to white people and it's unfair to you abby and we're going to take a stand and so she gets the rejection she's like you know who. I think did this to me. Is Maybe that kid? Frank in my in my Cal Class Black it. I know I think it was. That wasn't in CALC. What's before CALC PRE CALC? Well pre CALC doing trigonometry shapes. That's where I topped out by the way I I I just want to say I think in our inner monologue. She wasn't referring to him as that. Black Kid Frank. Have use wrong language in her head. I that's my guess. I don't like harsh on Abby Fisher just because terrible at school I I mean this has led to some harassment abby. We should be honest. Rate when this case was ultimately settled The Hash Tags. Stay Mad. Abby trended right Shortly after that in two thousand sixteen someone who wasn't a fan of hers flipped her onto her back in public and she was sort of like a similar to turtle unable to right herself within several hours. Until I don't WanNA endorse that in two thousand seventeen. Someone kind of quietly snuck a treadmill under her and she and she just walked in place for nearly a day until someone Notified her about what was going on so again. I don't encourage that sort of behavior. That's not what we're here for and I wish you the best. I wish her and white people everywhere the best you know. Maybe you throw off your chains and rise to meet your oppressors. Abbey's lawsuit makes its way up right and the appellate court basically Gives Texas as policy the consideration of race? A thumbs up saying Essentially yeah this seems to seems to be fine. They don't do a thorough analysis The analysis required by the President of the Supreme Court. And as a result this is our first non five four case right. This is a seven one case the 2013 case and that's because it's sort of a formalistic simple question which is did the court below. Consider the question properly. Surpreme Court says no no. You didn't analyze the policy correctly. And they sent it back down to apply the proper framework so the equal protection clause says that no state shall deny to any person within its jurisdiction the equal protection of the laws if a law is challenged for being discriminatory against a group of people. The court will default to evaluating it under a test. That's called rational basis review and it just means that if the government has any rational basis for the law then it's okay and historically this has been a very low bar that's easy to get past very easy and it makes sense right like the government makes distinctions between groups of citizens all the time. It's totally normal. Like wealthy. People pay a higher tax rate than than working people and poor people. And that's normal And it's not an equal protection violation yet so conservatives on the court any ideas if you're listening to the court that gives congress the benefit of the doubt that they're acting in good faith in as long as they can point to a legitimate purpose of the law. And show that it's doing generally when it's supposed to be doing The court says it's constitutional so to to give some color give an example Williamson v Lee Optical was a nineteen fifty five case where someone challenge and Oklahoma Law that required individuals seeking eyeglasses to get a prescription for those eyeglasses and the argument was that this discriminated against unlicensed k. A different time and the law was upheld under original basis review. Because there's a legitimate government interest in promoting People seeing stuff and the law was rationally related to that interest rate so that's sort of the outer boundaries of it but it's also worth noting this very low standard has been applied to discrimination against lgbt which is essentially a statement that they are not a particularly discriminated against a group historically. We'll get into. I think definitely something in a second but I think that speaks for itself right the flip side of this does that you know. The Fourteenth Amendment was passed in the wake of the civil war. If it means anything right it means that it protects historically oppressed groups and so the courts need something to give force to that right and so what the court does about this as a law? Discriminates against historically oppressed groups. The court scrutinizes those laws much more intensely meaning that the government's interest needs to be more compelling and the law needs to be more tailored to achieving that interest. So one step up from rational basis review is what's called intermediate scrutiny. It's just a little higher and that's the standard us when the court is evaluating discrimination based on gender or for some reason legitimacy birth women bastards. No idea why they think that bastards are historically discriminated against to the same extent as women. But my only real gas is that this is sort of an old case and like back in the day. This was the worst thing you could say to. Someone like you if someone if someone walked up to you in the street and it was like your mother was an impure woman had to fight to the death. That was how it was until like nineteen eighty-five even that older case though it's like forties right. Anyway as a practical matter intermediate scrutiny when a court applies that test. It's much more likely to find a long constitutional right. And then if a law targets some of the categories that the court considers to be sub the subject of the most historical discrimination which it's defined as race national origin religion. Those are subject to the most intense review. Which is called strict scrutiny? And so we'll all almost never pass this test. It's very rare and they're almost always found to be unconstitutional when a court applies it and in this case here the court says we'll look the school's admission criteria explicitly considers race. So you know. That's discriminating on race. Strict scrutiny is the proper tests and so the court kicks this back down to a lower court. Saying you've got to apply strict scrutiny. That's why everybody just assumed. Affirmative action was dead and is the first articulation of strict scrutiny. Like district scrutiny. Incor- Matsu it is the the first time the articulated is interning. Japanese Americans and that survived strict scrutiny. The first time this pops up when the court was deciding that pudding Japanese people in Internment camps during World War. Two was a okay just to give you a sense of where they're coming from with this shit and you know I think maybe the most offensive part of the whole framework is that it's based on category so differentiation. Based on race gets the most scrutiny. No matter what the races right same with religion which means that if you treat whites unfavourably it's the treaty the exact same way as if you treated blacks or Hispanics on favorably despite the fact that the whole historic discrimination thing gets flipped on its head entirely right. That means that the court would scrutinize a claim of discrimination against a white Christian man more intensely than a gay woman for example just because one is race and religion and the other sexuality and gender which they don't think are that important right. I'm just imagining the Roberts court sitting down with general firm and being like look forty acres and a mule. That's just for black people right and you know that. The constitution does not discriminate based on race. So we're going to have to take real close look at this. So and the result of this like inability to distinguish between say discrimination against white people and black people is that the equal protection clause which popped up after slavery right specifically to protect the rights of freed. Slaves has become a tool to attack. Good-faith attempts by the government to make race based determinations to correct past inequities so states have stopped being expressly racist against non whites in the way that they were in the fifties a pass subtler laws give voter. Id gerrymandering these things. Like target non whites and they do so on purpose but they don't do so explicitly and so they don't get the highest level of scrutiny. In most cases the only laws that do openly distinguish between races are laws like affirmative action which are openly and honestly trying to remediate those same historical wrongs and the result is that a lot of ways. Protection clause has been kind of flipped and has now been a effective mechanism for beating back liberal left attempts to combat racism. And you see that with the history of affirmative action. This is a program that was born in the same time as like desegregation was happening right and the idea is precisely to ameliorate inequities in education for Black Americans White Americans right. This is a major problem. That black Americans are segregated. They're separate and were schools. They're not getting in to the same schools as white. People are not getting into colleges at all and the idea is well. You know we need to change that and it's about inequality in inequity right. Yeah and that gets completely sort of neutered because the idea that a program is designed to help. Black people is is so scary. And you know it's a recognized compelling government interest that satisfies the protection clause but what the Supreme Court says will college admissions. Boards aren't really in position to make that Judgment Hall so they have to find a better different reason for wanting to have black people in and that has become the reason that that schools are now leaning on to sort of get around that weird and bad. Faith reasoning is diversity on campus. That affirmative action isn't really to correct. Those past wrongs diversities good on campus people benefit from it and they have like. There's plenty of research to show that that's correct. It's no longer about correcting those historic wrong. I think everyone knows that. That's untrue right. But that's the reason that they have been sort of reduced to court of course has thirty years right. I in nineteen seventy seven. You Know The New York. Times is running details describing affirmative action like in the headline as reparations American style. And now it's like this is really for white people so that they get talked to black people and Hispanic right and brought it. Wouldn't you like your kid to be able to talk to a minority for a little bit before they went off to Goldman a nice little town? Yeah I think you see over the course of the like the history of affirmative action in the courts and the way. It's litigated is first of all. You see the courts paternalism rate that they're taking over Saying that judges are the ones to better decide. What's good out of university? What's good for a public school to be doing? In terms of educating the State Students And then the other thing that you see is that like Michael said it starts with this. Like really robust. Almost like a reparations argument and idea about ameliorating and remedying past harms against racial minorities. But then what happens is The people with access to legal teams and access to the legal institutions. White people and rich people Mostly Conservatives are going to litigate it over and over and over again until it's something that we see and why. I think it's important to talk about this case even though the affirmative action program at ut is eventually upheld with the Fisher case shows is how sort of whitewashed neutered Once you have new conservative judges once you have you know. New Cultural Swings and conservatives are fuck civil action for sure going down right like I don't know that it gets raised to the supreme court anytime soon and the next decade. There's just no way survives absent Assyria shift on the court right now. Let's get back to this point after an ad. This episode of five to four is brought to you by liquid issue. I am one of those people who can't make himself drink water. It's not that I don't like how it tastes doesn't taste like anything obviously but I just can't do it. I don't know why in for a long time that meant I was dehydrated all the time then. I started using liquid. Iv a powder that you mix with water to make it taste better and work better. Believe it or not. 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He basically lays out all the reasons he thinks. That affirmative action Should be banned under the equal protection. Clause and your first question might be isn't Clarence Thomas. Black he is and I just want you to keep in mind what it must take to get a young black man born in nineteen fifty to the point. He is in this case it. It's it's psychology stuff. I don't understand it all but it's like nonetheless. There's a lot. There's so much psychology going on in here. I can't even believe it. Clarence Thomas has seen some shit very very weird. He starts off his concurrence with the heart of his opinion. Which is that. The equal protection clause is about the principle that government must treat citizens as individuals not as members of groups. And the again. This is just this. The soul of the conservative argument about affirmative action and similar government policies. You look at it entirely in a vacuum. And you say this is making determinations based on race which is bad and completely dodges the real issue which is that. These policies are reaction to the fact that society itself makes unfair and inequitable determinations based on race. That need to be redressed. You're waiting until society has already sorted people based on race and then saying we're now blind to race right and so that's like you know. I don't WANNA get ahead of us to the GINSBURG descent. Just one point. She makes rebuttal to that that I think is good. Which is that the top ten percent program at. Ut is supposedly race neutral. But the reason why it actually increase diversity from miniscule to slightly more than miniscule at this school is because the schools in Texas were so segregated that you know you're taking the top. Ten percent from schools. That are almost predominantly. Black Room was predominantly Hispanic. And that sort of by default is increasing right diversity and so the idea that these are otherwise neutral policies when society is structured in such a racial way is. It's a joke right one thing and again we shouldn't get too far into Ginsberg's point but the story reduction of affirmative action to this weird diversity. Argument has led us to a place where every single person is lying right right. The schools are lying about what their reasoning is the Conservatives on the court that are knocking the shit down or lying about what their reasoning is and. No one is being honest about what they're trying to do which is like one side's trying to correct for historical wrongs and the other side is saying now. We don't think we need that. You think are good. Yeah so this decision. It goes seven to one and the court says that the circuit court below did not properly apply the strict scrutiny framework that the Supreme Court has required of race based admissions policies. And pretty much. Everyone agrees that they didn't apply it correctly. Or almost everyone agrees. Kuenssberg descents so it gets knocked down to the lower court for reconsideration. Thomas's concurrence is saying. Yeah I agree with the majority. It should have been sent down to lower court but here all the reasons why when it makes its way back up. Here I'm going to try to Shootdown affirmative action right. Thomas is basic thesis. Here is the same as every like every minute. Like a Frat party were like twenty year. Old Guy is like yeah. I'm colorblind and you're like I don't like that like I'm just red flags. Everywhere you know Clarence. Thomas says that race based considerations Dina Sol. I don't feel demeans. It's exactly the kind of shift that when liberals say the Conservatives are like oh you look very feelings based arguing right. I if you said that anti-gay laws demeanor solved day. Would fucking excoriate would just kill you just paragraph two paragraph web. Bullshit that is right. All of his arguments are sort of this like G. Shucks slippery slope argument. Like oh you say you. WanNa give black kids the chance to get into school but who what gets out of control. And it's just full-scale segregation again. It's like well. I don't think that's a realistic possibility. Here dude like an affirmative action policy that like gets African American admissions to like three percent lower than their actual percentage of the population in Texas. Or whatever the fuck is not at risk of actually recreating segregation somehow. Like what are you even fucking talking about? And he goes in on like Texas university in Ginsburg for echoing arguments of segregation and slaveholders slaveholders said that this was good for black people and Segregation said that this furthered educational interests. And it's like. Are you really not going to interrogate all like what is underneath those arguments right like you don't have to pretend that all of those arguments or those aim like slaveholders said it was good you said it's good? I I just can't parse this having that's what's so annoying to me too about. This continued conservative. Argument is it's on. Its FACE NOT STRENUOUS INTELLECTUAL. Legal reasoning right. It's just a lie about how race works in society and everybody knows so even just as black men who isn't on the court anymore. But he is saying the same things back in affirmative action cases from decades before in particular in one in. Balki saying quote. I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful to ask that this be so to demand the impossible so like everybody knows right that it's a lie so after the Fisher twenty thirteen case comes out. Universities are concerned about how to ensure diverse student populations and Little known publication called the Harvard Educational Review like feels compelled to Basically publish this stand where it was that sarcastic and I should know what that is or is that like I do not. I mean not even that I give a fuck with institutions like Harvard. Have to say about this. But these are the people that like purportedly gas are like concerned about like teaching kids or something and so I do not. That's one offer is concerned with Harvard's like a real estate hedge fund with that's right now. It's somewhere between thirty and forty billion and I think a close second is University of Texas is the Harvard Educational Review in two thousand thirteen. After Fisher comes down bear saying we wonder what Fisher teaches us about the limits of race neutrality as a guiding framework for addressing racial inequality. Were deeply concerned. About emerging catch twenty two that some students of color who as a byproduct of poor funding and strange resources in racially segregated schools have not been afforded equal educational opportunity should be deemed unprepared for elite education by the same structures that systematically unprepared them so it really can't be overstated. How Much Thomas? Argument and the conservative argument here is based on an absolute lie that everybody knows about race and diversity so to circle back to Michael. You mentioned that. He makes his argument that like all. This stuff is the same thing that segregation has proposed. This is a quote from him. The argument that educational benefits justify racial discrimination was advanced advanced support of racial segregation in the nineteen fifties but emphatically rejected by this court. And what he's referring to Brown v Board of Education and like. Yeah Dude good argument like same thing right like what? So what's happening is this is where the conflation of all different types of differentiation is weaponized by conservatives who can just pretend that the efforts by the states in the nineteen fifties to keep blacks in a functionally separate society are actually the same as efforts by the states now to do the exact opposite thing right and it's like the epitome of the conservative brain on race issues. Generally right where the only thing that ever matters is discrimination in its most literal and obvious sets. You know you have like we mentioned voter. Id gerrymandering any of the countless right-wing efforts to disenfranchise disempower minorities That don't technically target people by their race. But a have the impact of targeting people by their race. And be if you dig into even like a few of the records Behind any of those efforts. It's extremely obvious what the motivations are right. Does all get a shrug from conservatives because it's not explicit though the one thing I will say that I appreciate about Thomas's concurrence is? I actually think pretty highly of Thomas as a writer. He writes very clearly and powerfully on his ideas which are often I find to be totally bat shit crazy but you know not see them in a very clear way and I was reading this and it felt uncharacteristically like bull ran T- and there was one point towards the end though where I felt like the mass came often use just like look folk way people. They've never done anything for black people. I don't trust them to do anything for people and I was like. If that was the concurrence in its entirety. I would be like yeah. I feel like respect that you know but the is a bunch of conservative bullshit heaped on top of this is also a quote. There is no principled distinction between the universities assertion that diversity yields educational benefits an segregationist assertion that segregation yields. Those same thing was like first of all like this stuff is like objectively measurable right. You can actually figure out if this stuff benefits people you can measure on across all sorts of metrics right and also the segregationist argument. Was that if you ended segregation it would cause whites to be like vindictive towards blacks right and it's really the same argument. Is that really what we're talking about here? I don't think so like yeah. Yeah and then he gets to like the real juice of it where it gets really interesting weird which is where he started talking about how minorities themselves are hurt by affirmative action. And this is when you can start to that. This is a very personal thing. Clarence Thomas is a bit of an accent. So yeah he says minorities admitted to schools under from an action or less prepared than their peers will struggle in harder school right when they would have been finding a lesser school. And He makes the point. That blacks Hispanics will feel bad because people will assume that they didn't earn their place. Which by the way that's the actual argument made by Segregationists in Brown v Board? Because what it's saying is that white people are going to be upset and vindictive about this and that we need to cater to them on that point very similar to the segregationist argument right so I this is like this very weird paternalistic argument where it's like. Look we need to protect minorities from these hard classes As if they can't make this decision themselves they can go to a lesser school. If they feel like it it's their choice and also I don't think the schools are easier. I don't I don't want to speak to like stem. I feel like I'm sure. Caltech is harder than whatever Georgia tech is that SORTA bad some school St John's Tech. I'm sure that Caltech harder you know right but like fucking history at Harvard is not like drastically harder than history at fucking Hofstra or whatever and the idea that we need to protect them from like fucking social psychology or something. Come on fuck out of here right right. The idea that we need to protect them from like social ostracization or just like feeling bad about themselves but not protect them from what society does to date racial minorities. You know. It's wild to me like how is helping the great grandchild of an enslaved person. Go to college. Like how is that? A bad thing for our world and it goes without saying that conservatives have absolutely zero interest. And you know. It's not a question here but have zero. Interest at all in interrogating Admissions for donors legacies athletes right no interest in using the equal protection clause to protect the poor or any other category of people ready result of that is like the gaping contrast between the empty hand wringing about unfairness about race and then the complete disregard of it where similar unfairness benefits. All of their friends. They make like fucking awards dinners you know. I don't know if our listeners are unfamiliar with Supreme Court. Justices do in their free time. It's like they obviously don't have real jobs and people want them to speak at places and show up at their dinners and stuff so you just give them like a fake award. Where it's like. Oh Clarence Thomas you just one The Constitution Society's Award for a judging so you can You just pop up with his dinner and we're gonNA give you Ten thousand dollars and a trophy Say Ten words. That's their whole life. Every every weekday is just one of those things and they make a bunch of friends there and all their friends are like. Hey My kid. My kid didn't get into The University of Georgia He's scored a twenty eight on the sat's and I just think that black stat. Yeah Yeah Yeah that's right and affirmative action is a drop in the bucket when it comes to like quote unquote unfair separate from your grades and Shit admissions. It is the fact. That the score on your. Sat's is a better predictor of your parents income than of your performance in college right legacy applicants at Harvard. Get in at somewhere between a four times and nine times clip relative to non legacies Legacy admissions hover at around ninety percent. White forty three percent of white students at Harvard are legacies athletes or the children's donors evacuate. Its forty three percent and Harvard is what percentage black like five percent and all these fucking white kids are looking at them and being like they. Do you know you are not one of US sir. And it just highlights again. How arbitrary the differentiation between the categories that were concerned about right so bringing up that like Poor people aren't getting into college at the same rates because their parents aren't Donors or legacies or whatever That's not going to concern the Supreme Court and you don't think the constitution protects poor people. You know how I know. It doesn't it's because that case went to the Supreme Court. Fuck Summer China we. We will We're going to hit it but I mean these are government entities the schools -scriminate based on. Who was a legacy adamant? Who's a donor right? There is no particular reason that the equal protection clause couldn't protect against that right. The only real reason is that they're like well at exactly right and the fact that it you could easily tie a huge number of social ills to. It doesn't mean anything to them. They have no interest in that and again. It's because these are they're fucking friends can have. These people got into college right if they ever held that legacy admits to Harvard violates equal protection clause. They're friends would just all stop talking to them. And that's why when you're bringing a question to the Supreme Court about particularly constitutional rights. You're telling yourself ally if you believe that The Supreme Court justices are going to go through any sort of objective analysis. Right it's about the justices individuals sort of material realities and What is subjectively important to them. Their families and the people that they know yeah. Let's get back to this point. After an ad this episode of five to four is also brought to you by Roman. Talking about erectile. Dysfunction is tough. Most men avoid the subject altogether giving excuses. Like I'm too tired or sorry I have to work on my legal podcast. 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He has argued that the quote stigmatizing effects of affirmative action put him at a huge disadvantage when he was trying to find work. Lawyer and I WANNA put that in perspective by just kind of running through his career right. That's graduated from Yale. Yale Law in Nineteen. Seventy four was an assistant attorney general in Missouri Until Nineteen. Seventy six after that worked for a few years at Monsanto Chemical. Yeah doing I'm sure it's the kind of work you write home about. And Nine hundred seventy nine. He goes back to his old boss From when he was an assistant attorney. General Who has now become a senator doing legislative work and then in nineteen eighty one and eighty two? He was Reagan's Assistant Secretary of Education for the Office of Civil Rights in the Department of Education and from eighty two until nineteen ninety. He was the head of the Equal Employment Opportunity Commission which means that within eight years of graduating from law school at the age of thirty four he was the head of one of the most prominent federal agencies in the country to put that in perspective at the age of Thirty Four. I am arguably one of the top twenty five lawyers on twitter where he would have been if he didn't have this after that he's nominated to. Dc Court of appeals where he stays for about a year and a half and then he is nominated to the Supreme Court at the age of forty three the youngest in the modern era the youngest since nineteen thirty nine. I think before that sometime in the eighteen hundreds and I guess my question is what does he think he would have done. He was at the top of the legal profession within eighteen years of graduating from law school. Right so what he's actually referring to by the way when he says it was the hugest advantage. He tried to apply to a bunch of law firms and They said no despite the fact that he had great grades at Yale and he said is because they believe that I was the beneficiary. -firmative action did anyone say that to him. Not that I've ever heard I think it says a lot about the conservative mindset here that he gets past trouble getting jobs at law firms in the nineteen seventies and assumes that the reason is affirmative action rather than the fact that he's fucking black. He has great grades. Yell which affirmative action cannot produce on. Its own which means that those people those attorneys are evaluating them. They know you can compete with these yield kids right and they still turn them down. And he's like affirmative action. I think right. And that's why. He thinks that his unbelievably unprecedented rise to the Supreme Court. Unfair or since at somebody never will be again. No one I mean it would be shocking if someone I wouldn't put it like totally out of the question but someone younger than forty three being nominated to the Supreme Court in this era just seems Bordeaux an impossible. It's wild. It's crazy that it happened. Then also he dodge sexual harassment. Allegations were unbelievably credible hill accused him of sexual harassment while he was at the EOC including the allegation that he plays a pubic hair. On a coke can and then gave which has to be true right. Make that something and make up. If that's made up Kudos her but if I'm like what she went through right just something that continued for years. Clarence Thomas his wife. Ginny Thomas who just like a standard bear conservative more on Donald Trump junior level intellect in twenty eleven called Anita Hill and said I forgive you accusations against Clinton I wish bitch a bitch word and again great grades at Yale or not like just want to emphasize these guys are dumb and so while we might want us all kinds of ways to be draws right we might want to be grasping at straws to be like? What is the intellectual like backing and foundation? For What Clarence Thomas. Raise the way he is. Actually the reality is like what Clarence Thomas is known for is sitting on the bench and not saying fucking word Which is don't though. That's cool clarence for for like what was the six years eight years about saying anything during oral argument and boss Shit Dude. Like if you're at the top of your profession right you don't have a boss or anything I wanted to just like. Don't even have to do anything. I just read a story about a lizard in a cave that stay completely still for seven years. If I realized that I could do that I would do that just immediately without any I'd be like. Oh my God there. That's the next seven years. Yeah I so I don't WanNa hit them hard for that because to me. That's something that I'd be an admiration I'll be on my phone right just like openly watching videos. Yeah that's what I'm saying. There's different ways to be smart. And the way Clarence Thomas figured out how to be smart is like you know not having to work at his job. I don't think that any sort of Really compelling legal brain right. No I mean he's he has like a freight look. Certain frameworks here operates. Well within when you're looking at his argument in this case which is like purely political argument really policy-making argument that's where he's at his weakest. You see him sort of just as they flailing. Kind of mediocre intellect There are other ways where I think he's He can be hard to reckon with if you're fighting him on his terms right if you agree with the way he approaches something And he's often quite effective. If you take a step back from the approach something I think he he rarely is yeah. I think that's right. This case takes place in twenty thirteen in two thousand sixteen it crawls back up to the Supreme Court and pretty much everyone thought affirmative action was going down. It was just GonNa. This would be the end of race. Based considerations and schools would have to come up with this Increasingly convoluted network of policies to try to replicate it. Read and what actually happens is that it goes four. Three the other way and Very shocking that Kennedy seemed to kind of just all of a sudden choose the pro affirmative action side. We have theories about why this is the case. I think the good faith theory would be. That Kennedy was persuaded they. They just they abided by the framework that the court laid out in the early two thousands and And that was that the less good faith argument. The more legal realist. Argument is that Kennedy realized that affirmative action as it now stands is a shell of what it was that. It doesn't really do what the schools want it to do that. Diversity at the top schools is garbage and that they'd effectively one and you can keep the system in place and And it doesn't really impact their their relative privilege of the privileged class. It's fucking weekend at Bernie's it's like. Oh affirmative action survived. The corpse of affirmative. Action is present and this is one of the one of the effects of affirmative action being decoupled from the idea of reparations and inequities and instead tied to diversity which is Kennedy talks about these programs increasing diversity at ut. Like I wish. I had the numbers. It's like increasing black enrollment from four percent to seven percent or something like that Hispanic enrollment from fourteen percent. Seventeen percent Texas is a fucking majority minority state. His antics are forty percent of the population. African Americans are twelve percent of the population. And I'm not saying that it needs to their student. Body needs to perfectly you know jive with that. But the idea that these miniscule increases that still vastly underrepresented minorities can be framed as any sort of meaningful progress is debts the fucking conservative victory right there. That's it so what's Abby Fisher up to him? She apparently Is this correct? I heard that South of the Texas Rangers Stadium in Arlington Texas There's a traffic light and if it looks like a regular traffic light at first but if you look close it's actually Abigail Fisher and she's just holding up the colors and is that true is basically because she's a financial analyst at home. I got even worse. I thought I was like wow good for her. She's a traffic light now but it turns out. She's a financial analyst. Yeah she graduated from Abbey Wreck. She graduated from From LSU WORKS IN FINANCE. Whatever the fuck that means and Wild to me I would it be so bold but her. Lincoln is public and She still unbelievable. Loss of milk quotas spoiled glass of milk in the sunlight justified. I don't I don't WanNa make remarks about her looks. Because inequitable commentary about attractiveness has been used historically to denigrate marginalized women. But I do have one comment. Which is sometimes you look at. Someone would like heritage from Uk or Ireland right. And you think like maybe you need more than a small island for the genetic diversity genetic diversity standpoint before he can like consistently churn out normal healthy looking people all right so I think that's it for this week next week. We are doing shelby. County colder voting rights case. And now that I'm thinking about maybe a little too much racism back to back but we're going for it we're going right in. I think this is the worst opinion. If the Roberts court yeah that's probably right for your seatbelts. It's upsetting to read. It's going to be upsetting to listen to get excited. Five four is presented by Westwood One and prologue projects. This episode was produced by Kacha Cova with editorial oversight by Leeann Nayef ACC- Andrew. Parsons Artwork is by teddy blinks at chips and why in our theme song is by spatial relations from the Westwood. One podcast network.