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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hi Aughie?
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. You know why?
J. Aughenbaugh: Why?
N. Rodgers: Because you're going to make sense of that crazy argument that happened in October of last year that you were trying to help me make sense of before with this Supreme Court cases. Sorry, I know we're leaving right in, but I'm excited about this because this is that you had to explain to me why the students were mad about the admissions policies at Harvard and UNC, and it wasn't because they weren't getting into the well, some of them it was because they weren't getting into the school. But remember when you were trying to explain to me how the universities were saying diversity, trust us rightly? But they can define what diversity meant they couldn't define what they were going after. Well, apparently, the judges felt.
J. Aughenbaugh: Pretty strongly.
N. Rodgers: Pretty strongly about that.
J. Aughenbaugh: Yeah. Listeners to start off our third episode of our Supreme Court wrap-up summer of SCOTUS. We're going to lead off with the two University Affirmative Action Program cases. As Nia mentioned, an interest group, students for fair admissions, challenged the admissions policies of Harvard College, which is, I'm going to go ahead and explain it because this is what we do on this podcast. But I think most listeners would probably know that Harvard is one of the most prestigious, but LB it private higher education institutions in the United States. Whereas the University of North Carolina is one of the most prestigious public universities in the United States.
N. Rodgers: The flagship university of North Carolina.
J. Aughenbaugh: Carolina.
N. Rodgers: Even though I went to state and UNC sucks. But I mean that in most loving way possible, go pack.
J. Aughenbaugh: Yeah. But I mean, for listeners, both Nia and I are.
N. Rodgers: Listeners can't see it, but I'm doing the wolf pack symbol with my hand.
J. Aughenbaugh: Yeah. She is. Listeners, Nia and I both went to institutions that have significant rivals within their states. I mean, I went to Virginia Tech, for instance, for my master's and my PhD, so anytime somebody says I got my degree from UVA am just like loser. Now.
N. Rodgers: The main crux of the issue, if I recall correctly, and you need to correct me if I'm wrong, was that students were saying that if you use admissions requirements to admit a diverse population of students, you are by doing that, keeping out certain students, and it wasn't that they were it's not a Black, White issue, literally.
J. Aughenbaugh: Correct.
N. Rodgers: It's also Native Americans, it's also Pacific Asian-Americans. Like there's all groups that find themselves "punished".
J. Aughenbaugh: Correct.
N. Rodgers: By not getting spots in the admissions. Is that more or less?
J. Aughenbaugh: Yeah. What you basically had was students for fair emissions were arguing that well, North Carolina in particular, it was argued, violated the equal protection clause of the 14th Amendment, and with Harvard, the way the case was initially presented to the court. Because Harvard is a private institution, whether or not Harvard violated Title 6 of the 1964 Civil Rights Act. What the Supreme Court ended up doing in deciding these use cases as they merged them, and the votes was 6-3 in both cases, and these two cases were two of the, I believe five, or the term, Nia, that split on the Conservative-Liberal divide, if you will.
N. Rodgers: Five out of?
J. Aughenbaugh: Fifty-eight.
N. Rodgers: So 10 percent?
J. Aughenbaugh: Yeah.
N. Rodgers: I think people think that court's way more divided in that.
J. Aughenbaugh: Divided in that.
N. Rodgers: We're going to talk about that at some point.
J. Aughenbaugh: Yeah, we're going to talk about it.
N. Rodgers: In our stats episode.
J. Aughenbaugh: Yeah, in our statistics episode. But the majority opinion was written by Chief Justice John Roberts.
N. Rodgers: As far as I'm aware, this is novel, is it not?
J. Aughenbaugh: Yes.
N. Rodgers: It's novel-length writing.
J. Aughenbaugh: Wow. It's novel.
N. Rodgers: The entirety of the.
J. Aughenbaugh: It's a novel in a number of ways. First of all, for listeners who really don't know, the Supreme Court has ruled previously on the constitutionality of university affirmative action programs as far back as 1978. In 1978, in the Bakke versus Board of Regents of the University of California. The court, in a 5-4 vote, and the only justice who was in the majority in all issues of the case was Justice Lewis Powell. The court said strict racial quotas were unconstitutional, but race could be a consideration, one of many considerations that universities could use in making admissions decisions.
N. Rodgers: Well, that makes sense that you wouldn't want to make it a quota. Because then you have to deny people who we'd be perfectly good students and recruit people who might not be good students as good students. I can see where they would say you would want to make it a factor, not the factor. That determines admission.
J. Aughenbaugh: The Supreme Court two other times after Bakke went ahead and maintained what the court said in that first case. I'm saying that again, strict numerical quotas or giving point advantages for one group versus other groups. Whereas unconstitutional. But that race could be one of many variables taken into consideration when making admissions decisions. The two subsequent cases that I'm referring to is Grutter versus Bollinger, and then the Fisher versus University of Texas case. But nevertheless, the issue was not going away, and the court held that both UNC's Affirmative Action Program and Harvard's violated the equal protection clause of the 14th Amendment. Now, the other unique feature that Nia you just made reference to is that the number of pages of opinions toll rolled, slightly.
N. Rodgers: Like resilient.
J. Aughenbaugh: Slightly over 240.
N. Rodgers: Or 240
J. Aughenbaugh: I mean guys, that's book-length.
N. Rodgers: Yeah. That's what I mean, by a novel that they wrote.
J. Aughenbaugh: If you want to know why some of these cases, and again, these two cases.
N. Rodgers: It takes forever.
J. Aughenbaugh: Forever.
N. Rodgers: They're writing a book.
J. Aughenbaugh: They're writing a book.
N. Rodgers: That's a fair point.
J. Aughenbaugh: I mean, the oral arguments in these two cases were heard the last day of October 2022.
N. Rodgers: Who wrote the most of pages?
J. Aughenbaugh: Sotomayor did in her descent?
N. Rodgers: How many?
J. Aughenbaugh: Sixty-nine.
N. Rodgers: Sixty-nine pages of descent. You are wrong for the following reasons. Page 69.
J. Aughenbaugh: I've actually broken out the pages because this is the thing that I do because I'm a Supreme Court geek.
N. Rodgers: Yeah. You're a geek. I mean, you're a lovable geek.
J. Aughenbaugh: Thank you, Nia.
J. Aughenbaugh: The next time I go up for promotion, I'll make sure that.
N. Rodgers: I'm not just a goop. I'm a lovable.
J. Aughenbaugh: Okay. Makes sure your letter is the first in my promotion package. Make sure you lead off with that sentence. The majority opinion by Roberts was 40 pages. Clarence Thomas' concurrence was 58. Neil Gorsuch's concurrence was 25. Brett Kavanaugh was eight. I barely took a sip of coffee and I was done with that one. Sotomayor's was 69 and Brown Jackson' was 29 pages.
N. Rodgers: Sotomayor and Jackson, were wrote dissents.
J. Aughenbaugh: Yeah.
N. Rodgers: Elena Kagan didn't write anything.
J. Aughenbaugh: She did not write anything.
N. Rodgers: Neither did Coney Barrett.
J. Aughenbaugh: That's all right, but by the way, don't worry for you Elena Kagan fans.
N. Rodgers: She's got your back.
J. Aughenbaugh: When we discuss the challenges to the Biden administration student loan forgiveness program. She's got you. She wrote a lot.
N. Rodgers: Is the theory here that the universities didn't show that you need diversity, remember the case we talked about with where a business has to prove that there would be damaged to the business if they allowed the exception, was the religion case from last episode.
J. Aughenbaugh: Groff versus DeJoy.
N. Rodgers: Isn't something similar where they had to show there would be a diminishment of the university if they did not have the policies in place that they currently have?
J. Aughenbaugh: Well, that's very close.
N. Rodgers: And they couldn't show that. Is that what?
J. Aughenbaugh: Well, it's very close. What's that issue? When the Supreme Court looks at challenges to government policies for violating the Equal Protection Clause. Listeners go back to our podcast episode where we discussed tests. Because the tests, when the government uses race as a classification is known as strict scrutiny. Strict scrutiny has two parts to the test. The government has to show that, one, using race furthers a compelling interest, two, the program created to further that interests is narrowly tailored. According to Roberts, both UNC and Harvard failed both parts of the test. Nia you mentioned the justification for affirmative action programs offered by universities. They want to produce a diverse student body and Roberts majority opinion talk both UNC and Harvard to the woodshed because they couldn't identify how to measure a diverse student body and his words how do you go ahead and show that your program is producing a diverse student body when you refuse to go ahead and say, what is a diverse student body?
N. Rodgers: In fairness to universities it is hard to define why you would want. We just say well because it's a good thing and we instinctively know it's a good thing, but it's really hard to explain why it's a good thing to have a diversity of thought, and diversity of opinion on campus. Some of that comes from racial
backgrounds, some of it comes from ethnic and religious and gender backgrounds. All of that mixed together creates a group of people who can, when it's working well, force you to think about opinions other than your own, and force you to explore ideas that you had not come into contact with,.
J. Aughenbaugh: Then it will be beneficial.
N. Rodgers: But it didn't sound to me like the universities made that argument very well in the original argument.
J. Aughenbaugh: Yeah. In fact, for those of us who either listen to the oral arguments or read the transcripts of the oral arguments. We were shocked by the difficulty the lawyers for both universities, but particularly for Harvard, had in answering questions. Well, what's the benefit and how do you measure a diverse student body.
N. Rodgers: How do you measure the benefit?
J. Aughenbaugh: Yeah. Then the second part of the test, is it narrowly tailored? Well, what the universities has got originally challenge for was that the effect of their policies generally harmed Asian-American students and Roberts really honed in on this in his majority opinion. He came out and said, okay, but you guys are using racial classifications that make certain races in groups negatives as it relates to their admissions application, but others positive. But many of these classifications just don't make sense. Most colleges and universities rely upon the federal government's racial classification system. Nia, you and I are familiar with it because we've poured through census documents. Right?
N. Rodgers: Right.
J. Aughenbaugh: But these are classifications that as many scholars across disciplines, both liberal and conservative scholars have gone ahead and said, many of these classifications don't make sense. Let's use Asian-Americans.
N. Rodgers: It's way too bigger.
J. Aughenbaugh: It's way too big of a category. It's both over inclusive and under inclusive at the same time.
N. Rodgers: It's uniquely awful, a way to try to describe.
J. Aughenbaugh: Even something like.
N. Rodgers: An entire region of the Earth's folks. What's wrong with you. You can't put it.
J. Aughenbaugh: Or Latino. It covers not only Central and South America, but it also covers Spain.
N. Rodgers: Well, Latino versus Hispanic, and that didn't even appear in the federal census until the 1950s. Like before that, we just didn't count those folks.
J. Aughenbaugh: Yes.
N. Rodgers: Well, and the census is whole of confusion. But using those categories would be [inaudible]
J. Aughenbaugh: He was just like, that's not narrowly tailored.
N. Rodgers: Also doesn't it be too weird stereotyping of what you think? Well, we want lots of Asian students because they do really well in school. That's quite the broad stereotype you have there.
J. Aughenbaugh: It's quite negative because those of us who have taking training sessions, gone to institutes, as we are told, many Asian-American students, don't fit that stereotype.
N. Rodgers: And they feel enormous pressure.
J. Aughenbaugh: Their first-gen and their families, they don't know how to support college students like families across racial groups where students are first-generation. You've got these negative stereotypes, you are basically assuming that everybody within those broad categories, think the same way or bringing the same, if you will, cultural experiences to the university.
N. Rodgers: Which, there are 46 countries in Africa.
J. Aughenbaugh: Yes.
N. Rodgers: Hello, there's no such thing as an African.
J. Aughenbaugh: You're putting together those from African countries with the Caribbean?
N. Rodgers: Right.
J. Aughenbaugh: Then African Americans born and raised in the United States. As we've discussed at length in regards to the United States.
N. Rodgers: Which part?
J. Aughenbaugh: Which part of the United States?
N. Rodgers: I can see where using that as a determining factor, we could be very detrimental to certain groups. It also implies one of the complaints about, I should say, about affirmative action in general, is it implies that there is a need for that. I think that there is a need for an even playing field for young people as they're going through school, not necessarily college, but when they're younger, and some folks don't get that and some folks do. But I personally think it has a whole lot more to do with class
than it does with race. Poor white kids in rural schools, are as under prepared for college, as poor black kids in rural schools. You know what I mean like I said?
J. Aughenbaugh: Yeah, and we're going to get to that when we talk about what's next at the end of our discussion of these two cases. The third point that Roberts really honed in on, on why both UNC and Harvard's affirmative action programs fail the Equal Protection Clause, is that neither university could identify in the written briefs or their oral arguments when affirmative action would end.
N. Rodgers: A common complaint of that open-ended ideas when has the playing field being evened?
J. Aughenbaugh: Because according to Roberts, the Supreme Court continued with allowing affirmative action in colleges and universities. Because in the Grutter versus Bollinger case, Justice O'Connor's majority opinion said, I think the case was decided in 2003. She said, "well, within 25 years, we will no longer need affirmative action". Well, when the justices asked both universities, well, hey, we're only about five years out here so where's the end point? They refused to identify where the endpoint is, which really troubled the majority because the majority is it's like we are allowing an exception to what we said in Brown versus Board of Education, which is that you can't use race to divide people in the educational setting. We've only allowed this exception because we were told by you all that at some point in time you will have achieved a diverse student body, and we will no longer need affirmative action, so where's that end point? Again, this is a really good example of something you and I have discussed in previous podcast episodes about the Supreme Court. The justices will put stuff in their opinions that can be used in the future against you even though you won that first case. We've talked about it in the previous podcast episode in regards to Justice Roberts, majority opinion in the Moore versus Harper North Carolina redistricting case, where he went ahead and rejected the independent state legislative theory but at the same time made it very clear to state supreme courts.
N. Rodgers: Don't get out over your skin.
J. Aughenbaugh: Yeah. If you don't use your authority correctly, we will come down hard on you.
N. Rodgers: I have to admit this case is hard for me.
J. Aughenbaugh: It's really difficult for me too.
N. Rodgers: Because there's a part of me that believes that there should be an aspect of forcing diversity because otherwise you might get institutions that go back to being mostly male, mostly white, mostly upper-class. Think about what Harvard's original student body looked like, and UNC for that, not just picking on Harvard. UNC's original student body was male, white, well-to-do, but keeping out huge numbers of people who would have helped. When you have that diversity on campus, I have trouble articulating why I love VCU, except I say because of the diversity of thought on campus. Like it say, one of the things we pride ourselves on at VCU is that concept and so it's hard for me because I understand where the students are saying yes, but it causes harm to other when you take someone, you're not taking someone else, and so there is harm done to that group of people. If you base it in race, that's really complicated.
J. Aughenbaugh: This case is difficult for me because in the entirety of the time that I've been a college professor, Nia, I've taught diverse students and I like that.
N. Rodgers: Neither one of us went to institutions where that was not a thing.
J. Aughenbaugh: Yeah, and I like that.
N. Rodgers: There are plenty of those institutions.
J. Aughenbaugh: As a professor, I want to teach a diverse student body, but what the court is saying is, the way you guys have been doing it no longer cuts it. Now, I'm going to briefly summarize the other opinions. Thomas's concurrent, he joined Roberts majority opinion, so he had no problem with Roberts majority opinion but he wanted to add this. He thought that all forms of discrimination based on race, including affirmative action, are prohibited under the Constitution. Once again, Clarence Thomas, who by all accounts, benefited from affirmative action, came out and criticized what he thought were the really negative effects of such discrimination for those who received affirmative action slots. He believes, and he went into great detail how he thinks that affirmative action programs actually are bad for the beneficiaries of the program. Gorsuch, while he agreed with the majority opinion, basically concluded that the affirmative action programs could have been declared illegal, not unconstitutional, illegal because he thought that both of them violated Title 6 of the 1964 Civil Rights Act.
N. Rodgers: I want to see somebody arrest Harvard.
J. Aughenbaugh: Yeah.
N. Rodgers: Or UNC actually I rather see that.
J. Aughenbaugh: No. But according to Department of Education Regulations, you don't get arrested. You know what happens?
N. Rodgers: You don't get money.
J. Aughenbaugh: You don't get money.
N. Rodgers: They cut off the money.
J. Aughenbaugh: As far as universities are concerned.
N. Rodgers: Maybe I would have been arrested.
J. Aughenbaugh: That's the worst fate.
J. Aughenbaugh: I got to admit I read his concurrence and I was just like you spent eight pages basically just came back to the same point. He said that the court in the Grutter decision, said that affirmative action had to end within 25 years, and that the court rejected that there was a permanent justification for racial preferences. I'm like, Okay, fine.
N. Rodgers: That's why you only wrote eight pages. Basically, he could have written, I agree. Now, the two dissent.
J. Aughenbaugh: Sotomayor, wow.
N. Rodgers: He wrote that from the bench. He was like everybody sit down. I have 68 pages to read, to yell.
J. Aughenbaugh: By the way, I was following the day these opinions were announced by the court. I was following all of this on Scotus blog. Both Thomas and Sotomayor read excerpts from their opinions, and they went on for a long period of time. She read from the bench. She said the court's ruling under cut, the purpose of the Equal Protection Clause, which was equality.
N. Rodgers: To create a state of equal access.
J. Aughenbaugh: That's right.
N. Rodgers: I don't disagree with that. I mean, that's the point of trying to do this is to create Equal Access.
J. Aughenbaugh: Because we don't have equality.
N. Rodgers: We're not there yet.
J. Aughenbaugh: We're not there yet.
N. Rodgers: I think Justice O'connor's 25-year was optimistic.
J. Aughenbaugh: I think it was aspirational. We aspire to this.
N. Rodgers: But I mean, if you ask your average folk, are we there yet they will say no.
J. Aughenbaugh: It was aspirational. The only problem is the supporters for affirmative action. Okay. We're like, Hey, Grutter is a great decision.
N. Rodgers: But we put a timeline on. You have to meet the timeline, you're not meeting the timeline.
J. Aughenbaugh: But you're not meeting the timeline. And then she just went ahead and said and then she went into great detail about how she thought both the both university programs complied with both
the Equal Protection Clause of the 14th Amendment, entitled six of the 1964 Civil Rights Act. Justice Jackson's does that by all accounts. By the way, I enjoyed reading Brown Jackson's descent, but it was a light on the law and it was heavy on the rhetoric. And I got a quote. Can I read the quote?
N. Rodgers: I wish you would, because I really liked this quote.
J. Aughenbaugh: Our country has never been colorblind given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized. If a college considers whether that legacy of discrimination as unequally advantaged, it's applicant fails to acknowledge the well-documented inter-generational transmission of inequality. It's still plagues our citizenry.
N. Rodgers: Well said.
J. Aughenbaugh: Well said. And it's very characteristic of those who argue that there is still systemic racism in the United States. That it's hard wired into our system, and the institutions that are key to perpetuating that system. Like higher-education.
N. Rodgers: That's why it's hard. Because there are points to be made on both sides. I'm afraid I have to say that I come down with Sotomayor and Brown Jackson. But I also understand the courts saying yes, what's the end date? And if you can't prove this as a good, if you can't prove it's doing good, then why should we allow it? Basically, that's what they're saying, is if you can't prove that this is actually doing what you say it's doing, then why should we allow the exception to the equal protection clause?
J. Aughenbaugh: There was a quote and Roberts majority opinion where he actually calls out UNC and Harvard. And these were Roberts works for, in effect saying, trust us. Robert said, "We can't continue to trust you when you can't explain to us what diversity means or is, and when will it end." It was a stunning, okay. Part of Roberts majority opinion because hardly ever do Supreme Court opinions call out the legal arguments made by parties in the case and it goes, you're in fact, asking us to trust. You guys are saying trust us. We can't. Because you guys can't tell us what is the compelling interests and when will it be achieved? Again, I'm really divided. This is one of those cases to where I'm really divided.
N. Rodgers: Hence why we have spent the first half hour of this episode, these two cases, the others, by the way, are not going to be quite this long folks. It's because this is dear to us because it's higher education. But it's also super-complicated. We want everyone here to be happy and satisfied and that's just not going to happen.
J. Aughenbaugh: In going forward, and I've been asked this in a couple of press interviews, what I think is going to happen next. The universities have a couple of choices. One, they could try to find race-neutral ways to create a diverse student body. And a previous comment, Nia, that you made. In this podcast episode touches upon that. Focusing on socio-economic status and or zip codes. There's something else in Roberts majority opinion where he said that the court's ruling does not restrict or deny universities by looking at what students describe about their life experiences, and ubiquitous college application essays.
N. Rodgers: So now there will be an essay on diversity experience.
J. Aughenbaugh: Your adversity.
N. Rodgers: They'll be another essay, folks. If you thought there were not enough essays you were writing before, there will be another one that will give us a diversity statement.
J. Aughenbaugh: That's where I think we're going to see future challenges.
N. Rodgers: I think that's exactly what universities are going to do.
J. Aughenbaugh: As universities respond, okay, you're going to have groups like students for fair and missions are going to be like, "Are these actually race-neutral?"
N. Rodgers: Well, and not to throw a monkey wrench into this conversation. Here we go. Chat GPT will start writing people's essays. It will be an atrocity. Unlike the whole essay aspect of getting into college. Already people were cheating and having other people write them. Now they will have chat GPT right it. But let's go to something that's also dramatic.
J. Aughenbaugh: Where do you want to go next Nia?
N. Rodgers: I want to go to 303 creative.
J. Aughenbaugh: 303 creative versus a lameness.
N. Rodgers: Again divided 6-3.
J. Aughenbaugh: It was divided 6-3. In fact, all of these cases in this podcast episode were divided 6-3, and they were the only five of the term, I believe, that were divided 6-3 on purely ideological lines. In this case, an artist in Colorado declined to design a website for the same-sex wedding, stating that it was against her religious beliefs to do so. Colorado had a public accommodation law that prohibited discrimination against various protected classes, including same-sex couples. The court had to decide whether or not this law violated the free speech clause of the First Amendment by compelling the artist to speak or stay silent.
J. Aughenbaugh: Nia, how did the court rule?
N. Rodgers: I'm assuming that they ruled in favor of the designer?
J. Aughenbaugh: Yes.
N. Rodgers: That they have the first amendment right not to create this website, not to use their speech.
J. Aughenbaugh: That's right.
N. Rodgers: Because freedom of speech is you have the freedom to speech, right to speak.
J. Aughenbaugh: To not speak. Yes.
N. Rodgers: I think people forget that there is the freedom to silence as well. This is not the same as the fifth. I don't want to convict myself. That's a different silence. Yes, but they protest where everybody just stands in silence or you get up in your turn your back. That's free speech. Even though you're not saying anything, by your silence, you are making a statement.
J. Aughenbaugh: Yes. And I remind students when I teach civil rights and civil liberties, constitutional law, civil rights, civil liberties. When we discussed freedom of speech, I said, I always remind them. Remember guys, this is the freedom to speak or not. They're like, you're guaranteed a right not to speak and I said, yes, because in many authoritarian regimes people are forced to speak in favor of the government, in favor of particular policies, in favor of particular candidates.
N. Rodgers: [inaudible] is my favorite. I mean, because if it's not [inaudible].
J. Aughenbaugh: You're going to jail.
N. Rodgers: Ask Navalny.
J. Aughenbaugh: Yes.
N. Rodgers: How it goes when you say something against him.
J. Aughenbaugh: There were two parts to Justice Gorsuch is majority opinion. The first is whether or not creating wedding websites was artistic speech and Gorsuch said yes. He said a lot of these cases going forward in the future will be about courts trying to decide whether or not a particular business is artistic speech. Because some businesses will go ahead and say.
N. Rodgers: I'm not going to rent tables and chairs for a gay wedding. That's not artistic speech. That's a table and chairs. That's furniture.
J. Aughenbaugh: That's right.
N. Rodgers: I can see where that's going to be an interesting thing for the courts to have to decide [inaudible].
J. Aughenbaugh: What is speech and what is not. But he said in this case, that was easily answered because both the woman who wanted this business and the state of Colorado conceded that creating websites for weddings was artistic.
N. Rodgers: It's creative speech.
J. Aughenbaugh: Yeah, it's creative speech.
N. Rodgers: That was easy.
J. Aughenbaugh: Yeah, he said that was the easy part, though he readily acknowledged a lot of the cases going forward are going to be whether or not somebody who's an artist or not. Because this case is of a companion case to, what was it? Four or five years ago, the masterpiece Kate wedding cake case, where the court, on very narrow grounds said the state of Colorado showed animus towards the cake maker because he was Christian. I mean, so they faulted the process, not the law. And it was a very narrow decision in this case. However, Gorsuch writing for the majority said," Website designer was basically being forced to speak in ways she didn't want to, because she would be forced to create wedding websites for an activity that she sincerely believes violates her religious beliefs". So it was compelled speech. If she wanted to go forward with this business, she would be forced to engage in speech that she disagreed with.
N. Rodgers: Or she we'd have to pay some sort of fine or violation against her business. She was going to be prosecuted for not discrimination.
J. Aughenbaugh: Yeah. She would have to pay a fine. She would have to go through training in regards to discrimination training, etc. Colorado's public accommodation law is one of the more specific in Thoreau in the entirety of the United States.
N. Rodgers: In fairness lost like that are getting at the question of if anybody saw the movie, The Green Book, getting back the question of when can a business deny you based on a protected class? Back in the day it was protected classes, having to go around to the back to get your food or not being about, Hattie McDaniel had to come into the back of the ballroom in order to get her Oscar for crying out loud. It's trying to prevent that crap. This is a different protected class because it's protected based on sexual orientation or preference. Well, yeah, she's a protected class. Trying to prevent that, the law is trying to prevent that sort of thing.
J. Aughenbaugh: That's right.
N. Rodgers: This person is saying, but wait, this law is too draconian in the sense that there should be an exception for people who don't want to. Not to provide lodging, food, like the things that are not considered artistic but not to provide their artistic effort. Gorsuch said, basically, it's only about artists, it's not about hotels cannot jump up here and say we're not going to host gay weddings [inaudible] that because owning a hotel was not an artistic endeavor. No matter Trump may tell you about Mar logo. That was a dig that was unnecessary.
J. Aughenbaugh: But Gorsuch had a number of examples in his majority opinion. You'll be like forcing a Jewish filmmaker to make a movie in support of the Nazis.
J. Aughenbaugh: You can't do that, that's compelled speech. Now, Sotomayor writing for the dissenters.
N. Rodgers: She looked down and said, I'm standing at the edge of a slippery slope.
J. Aughenbaugh: Yes. She did make the classic slippery slope argument. She basically accused the court of opening the door to other businesses, discriminating against protected classes of individuals and there is a fear within the LGBTQ-plus community that this kind of ruling gives Supreme Court, if you will, protection to that discrimination.
N. Rodgers: Not without reason.
J. Aughenbaugh: Yes.
N. Rodgers: Not without reason to have that fear.
J. Aughenbaugh: According to Sotomayor, all the Colorado law did was impose a requirement that businesses could not discriminate. She didn't think speech was being compelled.
N. Rodgers: That's tough.
J. Aughenbaugh: It is tough because I would go ahead and argue.
N. Rodgers: Ask web designer if what they do as speech and they would probably say yes.
J. Aughenbaugh: Yes.
N. Rodgers: You ask them if it's a creative endeavor, they would definitely say yes.
J. Aughenbaugh: I'm also that narrowing it. I'm just like again, only for a brief period of time was I "artist, " a high-school bar band of my youth. But there were a lot of decisions, creative and otherwise, that we would not want the government to have imposed upon us. From the songs that we play, to how we played them, to how we dressed, to what venues we played.
N. Rodgers: This is another one of tough.
J. Aughenbaugh: This is a difficult case because I'm extremely sympathetic. I consider myself an ally of the LGBTQ-plus community. I don't think businesses should be able to go ahead and discriminate against them anymore than they can discriminate against people who are Jews or people who are brown or black against women versus men.
N. Rodgers: But part of me wants to say, why would you want this crazy woman's website anyway? That just showed my perspective. Sorry. She may make lovely websites, but I would never hire her because she does not share my value system. Which is you celebrate love wherever you find it because there's so little in the world. Dude, if two people want to commit themselves to a life of marital bliss slash theory
then good for them. That's wonderful and I'm more of that. I personally would walk away and not give her my business and tell everybody I know not to give her their business and hope that my friends would say, well, I'll just find somebody else to do it like that anyway. But I can see where that person is, you shouldn't be allowed to compel me to do this. I can see her side too. I don't agree with her personally on her moral issue, but I agree with her on the legal issue of the State should be very careful about what it compels especially artists. Because then you're getting into dictatorship. You will make films that support the State or else. We've seen that in history and we've seen what happens with that.
J. Aughenbaugh: Is Gorsuch pointed out in his majority opinion, the Supreme Court's been very consistent in protecting unpopular speech.
N. Rodgers: She's unpopular. She can have what I consider to be an unpopular or incorrect moral opinion, but she has the right to it. I must defend her right to it because otherwise, I don't have the right to my opinion That's how that works.
J. Aughenbaugh: If she chooses to express it through her website designs.
N. Rodgers: I have to respect that.
J. Aughenbaugh: Other people write books, other people are journalists, other people are musicians, other people make films, and some of us do podcasts.
N. Rodgers: Civil discourse is understanding that other people are allowed to have their opinions and thoughts and ideas.
J. Aughenbaugh: I can choose to reject them.
N. Rodgers: But I have to do it politely.
J. Aughenbaugh: I could choose to reject them as you pointed out find another website designer who perhaps doesn't hold.
N. Rodgers: In capitalism, the ultimate rejection is I will spend my money elsewhere.
J. Aughenbaugh: Oh my goodness, yes.
N. Rodgers: Hey, do I have to pay my student loans? Actually, that was never in question. It's never in question that people would have to pay people who had more than whatever the allotment, which I think was $10,000 and then maybe some extra money. But people were always going to have to pay the rest of their student loans.
J. Aughenbaugh: Yes.
N. Rodgers: This was never a question. If we were just going to wipe out all student loans in the United States. While that would be marvelous. That was never in question.
J. Aughenbaugh: The last two cases that we're going to discuss excuse me, are the two challenges to the Biden administrations student loan forgiveness program as Nia just described. There were two parts to the student loan forgiveness program. The first part was that an individual could be forgiven for $10,000 of what they owed. Part 2, if they received federal government financial assistance in addition to their student loans, they could be forgiven up to $20,000. The program the lowest estimate that I came across was that and this was what the federal government conceded, was that the cost of the program over ten years would be at least $460 billion.
N. Rodgers: That's starting to be money.
J. Aughenbaugh: That's some real jack at that point. But nevertheless, the two cases were Biden versus Nebraska, and the Department of Education versus Brown. I'm going to handle the last one first. Department of Education versus Brown. That case was dismissed by the court because the court, in a unanimous decision found that Brown and one other student or one other person who had a student loan could not demonstrate that they had standing. They could not show that the loan forgiveness program caused them any injury. The majority opinion by Alito was quite brief. Somebody who's read a lot of Supreme Court opinions here in the last couple of weeks.
J. Aughenbaugh: I was so happy about that. It was like all of 19 pages.
N. Rodgers: Awesome.
J. Aughenbaugh: I barely had enough time to finish eating a sandwich, and I was just like, we're done. Those folks were denied standing. However, Biden versus Nebraska, this was the challenge Nia, that six states brought claiming that the student loan forgiveness program was going to harm them. In particular, the main party was actually the state of Missouri. Missouri has a government corporation that manages all the student loans for all of the residents of Missouri, and they make money on this enterprise. They went ahead and claimed that they would lose nearly $44 million a year in fees if the loan forgiveness program was deemed by the court as legal. So the vote, six to three, conservatives vs liberals. Again, we've covered actually all five. We covered four out of the five, because the Department of Education versus Brown was a unanimous decision, but conservatives vs liberals, the majority opinion was written by Roberts. First of all, he said Missouri did have standing, because it's government corporation was created by the State of Missouri, and generates economic benefit for the state, of the fees. By the way, and I'm jumping ahead. Kagan wrote the dissent in this case, and she didn't think that Missouri had standing, but I was really confused because the Supreme Court has said that federal government corporations are a part of the federal government. United States Postal Service, Amtrak, Tennessee Valley Authority.
N. Rodgers: Did she arrive them at not being part of the state? She separated the two, didn't she? She said that the state corporation is not part of the state, and therefore the state cannot show harm.
J. Aughenbaugh: Yes, they cannot show how the state of Missouri was actually.
N. Rodgers: We disagree with Justice Kagan on that.
J. Aughenbaugh: And I re-read, pass that section of Kagan's dissent multiple times, and I still couldn't understand how she got there, but nevertheless, the part that you made reference just a few moments ago, according to the Supreme Court, the Biden administration student loan forgiveness program is illegal. Why? Well, the Biden administration said that their legal authority for the loan forgiveness program was the infamous Heroes Act from 2003. Now Nia, you and I are very familiar with this law because this was one of the post 911 flurry of legislation passed by Congress, where Congress gave the Department of Education the authority to waive or modify any student loans of first responders to the 911 attacks, or anybody who was tasked by their government to respond when in emergency. Now, those of us who have some background in Homeland Security were like, hey, this is a great law, because this benefits a whole bunch of people who might have to stop their educations because they go to war or they end up spending like nine months responding to a hurricane or a biochemical attack, et cetera.
N. Rodgers: That it would harm those people.
J. Aughenbaugh: Yes, but the Biden administration went ahead and said, well, we have a pandemic.
N. Rodgers: That's an emergency.
J. Aughenbaugh: It's an emergency.
N. Rodgers: It's a national emergency.
J. Aughenbaugh: Roberts majority opinion said, we're not persuaded that, that was the purpose of the Heroes Act, and moreover, were not persuaded that words like waived or modified were intended by Congress to include a student loan forgiveness program that would cost at least $460 billion.
N. Rodgers: Well, and would affect people who in fact, were not first responders.
J. Aughenbaugh: Yes.
N. Rodgers: If they had said we are going to waive first responders and we're going to define them as nurses, police officers, people who were essential workers during COVID, they might have gotten away with it. This court might have said, we want to see you categorizing those people.
J. Aughenbaugh: Or at least said to the Biden administration, you can't offer this program to all Americans.
N. Rodgers: It was unilateral. Anybody who had a federal loan.
J. Aughenbaugh: But those with federal loans who do X, could.
N. Rodgers: Who are teachers, who are nurses..
J. Aughenbaugh: But that wasn't the argument made by the Biden administration. The argument made by the Biden administration was, we have this law, we have this authority.
N. Rodgers: I'm going to say something I think will be wildly unpopular with some of our listeners, which is that this is an example of presidential power grab.
J. Aughenbaugh: Oh, yes.
N. Rodgers: Often presidents get away with it, because the Congress is either distracted, looking at another direction, watching TikTok on their phones, whatever it is they're doing. Actually, those people are never watching TikToks on their phone, but whatever.
J. Aughenbaugh: It's like a dog in the backyard.
N. Rodgers: They're chasing a squirrel and they're not paying attention, or they're of the same party and they like what the President has done.
J. Aughenbaugh: Yes.
N. Rodgers: It just so happens that this particular power grab happened at a time in history when the Congress is wildly divided, and the house is rapidly against this president.
J. Aughenbaugh: Moreover, it also happened in a period of time where the Supreme Court is very skeptical of broad executive branch claims of power. This is the third part of Roberts majority opinion. Roberts once again, used the major questions doctrine. I spoke about the major questions doctrine in a lecture that I gave at the Wilder School last fall, their Lunch and Learn.
J. Aughenbaugh: Monthly lecture series. I even predicted that the court would use the major questions doctrine in any challenges to the Biden administration student loan forgiveness program. Because the major questions doctrine basically says that if the executive branch is going to issue regulations, create a new program that has a major impact on the government or the nation's economy, then the executive branch needs to have clear legal authority from Congress to do so. According to Robert's, there was nothing from Congress that would suggest this. In fact, Nia, as you just pointed out, the House of Representatives earlier this year, in 2023, passed a bill that would have denied the Biden administration from going forward with the student loan forgiveness program. It got enough support in the Senate from "moderate Democrats", including Joe Mansion, the senator, formerly a Democrat, now an independent, Kiersten Cinema, and the Biden administration had to veto it.
N. Rodgers: There was not congressional support for this, which even Elana Kagan in her dissent said that it would be up to Congress to rein it in, and Congress did try to rein it in. This can't be a big surprise to folks. If you're disappointed, I'm I'm sorry. But this can't be a big surprise that this didn't fly. It was an
overreach. I would love to have had $10,000 of my student loans forgiven. But it was an overreach and I said it was an overreach from the beginning. You and I talked about that. Maybe if they had set the threshold lower, and they had said, "You know what, anybody who is making $35,000 or less, or $40,000 or less, and they're working in social work or nursing or whatever where we need those people, yes. "Let's pay off those people student loans if they don't have to struggle. But they said some ridiculously high $150,000 a person or something like what.
J. Aughenbaugh: For me, if they had narrowed it to specific people in specific occupations that were necessary to respond to the pandemic.
N. Rodgers: Teachers, nurses, world doctor. I would have been all about that. I think it would have been a lot harder for people in Congress to deny that.
J. Aughenbaugh: Oh goodness, yes.
N. Rodgers: But saying everybody in the world and throwing your hands in a big wide hug. That was cynically because I'm Generation X. Cynically, I believe that that had a lot to do with elections and election hearing on Biden's part.
J. Aughenbaugh: You and I have talked about this off recording that who this would have benefited the most was a part of the population that has increasingly voted for the candidates of the Democratic Party and that it was issued, what was it? Late summer before the Congressional midterm elections?
N. Rodgers: Exactly. I feel a little bit of cynical about this.
J. Aughenbaugh: One, if I was not a political scientist, two, if I wasn't not your classic Gen X cynic, maybe I would have been a little more, shall we say objective or not objective. I would have been more willing to go ahead and sign off on what the program was trying to achieve. Mind you I don't deny.
N. Rodgers: Then helping people with their student loans is a great thing.
J. Aughenbaugh: It's a great thing.
N. Rodgers: Nobody is denying that. But this broad, wild.
J. Aughenbaugh: Nia, you and I teach and work with a generation of students that is graduating with more significant student loan indebtedness, than either you or I had and mind you, you're still paying off your student loans. Me, it took me, I don't know, close to 18 years to pay off my student loans. You and I both.
N. Rodgers: For the long haul.
J. Aughenbaugh: We're in it for the long haul. We would never achieved what we have professionally if we had not gone to college. But the way we pay for college was student loans.
N. Rodgers: Neither of us came for money.
J. Aughenbaugh: Yeah, came for money. Again, I'm very empathetic to what the recipients would have accrued in terms of benefits. But the way the Biden administration went about this was terrible.
N. Rodgers: They made a promise as if they could deliver it.
J. Aughenbaugh: Yes.
N. Rodgers: That's also unfortunate because there are now people who feels that they've been bait and switched.
J. Aughenbaugh: Yeah, and if we don't like presidential administrations that we don't like engaged in these paragraphs.
N. Rodgers: We can't do it when people we do like. I think you and I are both, I would say, it's been a long time since I voted for a president so much as I voted against people I didn't want to be president.
J. Aughenbaugh: A particular candidate, yeah.
N. Rodgers: But I would like for them to all stop doing this because I would like for Congress to do their job.
J. Aughenbaugh: Yes, so would I.
N. Rodgers: That would be I think a marvelous thing. If Congress came up with some scheme of how can we work out some forgiveness or something for certain people.
J. Aughenbaugh: Nia, you and I've even talked about this off recording, that maybe there should be some consideration in the United States for mandatory government service. If you do that, then particular benefits become available to you.
N. Rodgers: Exactly.
J. Aughenbaugh: Including either a certain amount or a certain percentage of your student loan indebtedness, particularly if you make a commitment to go into certain professions in certain areas of the country.
N. Rodgers: Are forgiven.
J. Aughenbaugh: Yeah, it is forgiven. If you tell me you're willing to commit to 20 years of teaching public school in a rundown urban area of the United States or poor rural area of the United States,
you're willing to be a Dr. in far Southwest Virginia or Eastern Kentucky for the first 10 years after you get your MD, okay. Because we need those people.
N. Rodgers: Well, and we have some of that. We have this public service forgiveness loans.
J. Aughenbaugh: Yes.
N. Rodgers: Which if you're a teacher and you teach for 10 years in a non-profit school, not in private school, so not Harvard. But if you teach somewhere else in a private school, you can in fact get the rest of your loan forgiven. You have to pay a certain amount of your loan and then the rest of it will be forgiven. That does exist what he was trying to do I think it was expand that to everyone. I think you and I both agree that perhaps we could have expanded the idea of public service a little bit to include maybe some of the other groups you're on mute Aughie, which I'm going to leave in the recording because we do that sometimes.
J. Aughenbaugh: Yes.
N. Rodgers: But it's just everybody in the world, and that was too much for the courts to take, and too much for legislature to take. They called Biden out a little bit.
J. Aughenbaugh: We've covered all the cases.
N. Rodgers: Now at our next episode.
J. Aughenbaugh: We're going to look at various statistics of the recently completed Supreme Court term and some general observations that both Nia and I have about what's going on with the Supreme Court.
N. Rodgers: Looking forward to that discussion.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thanks, Aughie.
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