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--:-- John Bickley: The Supreme Court issued a series of significant rulings over the last week, including a seismic decision on affirmative action in college admissions, as well as opinions addressing both freedom of religion and free speech. In this episode, we talk with Heritage Senior Legal Fellow Sarah Partial Perry about the most notable of the cases and how they'll shape the legal landscape moving forward. I'm Daily Wire editor-in-chief John Bickley with Georgia Howe. It's July 2nd, and this is a Sunday edition of Morning Wire. Quick note before we start, a portion of the following interview aired on Friday.
--:-- Georgia Howe: Joining us now is Sarah Partial Perry. Hey, Sarah.
--:-- Sarah Partial Perry: Hey, Sarah. So let's start with these affirmative action cases, Students for Fair Admissions versus Harvard College and University of North Carolina. Could you outline the arguments on both sides of these cases?
--:-- Sarah Partial Perry: Yeah, so Students for Fair Admission is an organization that brought suit against both universities. One for a violation of the Equal Protection Clause of the 14th Amendment and one under Title VI of the Civil Rights Act, which guarantees for both of them a colorblindness, equal protection, promises of equality and colorblindness in both. The claims were different, but they were related. So they combined both, but they ruled separately. The decision in the Harvard case was six to two. And remember, Justice Ketanji Brown-Jackson had to recuse herself. She's on the board at Harvard. And the decision in the UNC case was six to three. The three liberal justices, Ketanji Brown-Jackson, Sotomayor and Kagan, dissented. But the conservative majority ruled as a block in both cases, ultimately deciding that, yes, indeed, this was a violation of the Supreme Court's promise of colorblindness, the promises of Brown versus Board of Education, and that the use of race consciousness admission plans had to come to an end.
--:-- John Bickley: What were some of the points that stuck out to you that were the most significant that the majority made?
--:-- Sarah Partial Perry: Yeah, so there were a couple of points. Now, of course, the court had been asked to overrule a case called Grutter v. Bollinger. Grutter dates back to 2003. It was an opinion authored by Sandra Day O'Connor, and that was a case in which the court determined that yes, race was an acceptable criteria for admissions, but only to achieve the educational diversity that might ultimately be subject to beneficial higher education policies. They saw diversity as an end in and of itself but they were very clear that in 25 years or so they anticipated that the use of race would come to an end. Well, students for fair admission raised the question of overturning Grutter v Bollinger. And while the court explicitly declined to say that they were overruling it, Justice Thomas and his separate concurrence actually said, we are, for all intents and purposes, overruling it today. That's a big statement, particularly because Justice Thomas, I think, had one of the most impactful statements of the entire opinion while he joined with the majority.
--:-- Georgia Howe: His separate concurrence was beautiful in which he said he is painfully aware of the social and economic ravages of discrimination, but holds out enduring hope that the country will live up to the principles so clearly enunciated in the Declaration and the Constitution. It is a brilliant refutation of using race, continuing to use race, which the dissent had argued for, arguing that essentially this was remedying the past societal effects of discrimination. But as the chief wrote for the majority and stressed over and over again, there is no end in sight. The use of race has actually gotten worse and not better.
--:-- Sarah Partial Perry: So this ruling obviously has some pretty broad implications. What kind of effect do you expect this to have?
--:-- Sarah Partial Perry: Well, interestingly, they didn't eliminate the use of or consideration of race at all. In fact, one of the things that they said was that universities can consider an applicant's discussion of how race affected their lives. As long as the discussion is tied to, for example, quality of character or a unique ability that that particular applicant can bring to the university. particular circumstances in their own lives. So we anticipate that students will continue to have the opportunity to weigh in about their racial experiences if relevant to their applications. And in fact, the Harvard board has already issued its tweet saying that they will abide by the Supreme Court's opinion, but they will also encourage discussion of life experiences related to their own racial backgrounds and unique experiences.
--:-- John Bickley: Now, let's move on to the religious freedom case, Groff v. DeJoy. This case was brought by a Christian mail carrier who did not want to work on Sundays due to his religious beliefs. What happened in that case?
--:-- Sarah Partial Perry: So this is actually a very interesting case and kind of a sleeper hit. It was a late addition to the term, but this was a postal worker who had taken the job with the understanding that he would not be forced to work on Sundays. He follows by the letter of the law the Exodus representation that he is to observe the Sabbath and keep it holy. For him, the Sabbath is on Sunday. And after a contract with Amazon was signed, as we know, the U.S. Postal Service began delivering on Sundays. he requested an accommodation, saying that this is a violation of his religious beliefs and it might be possible to accommodate him without significant impact to the Postal Service's businesses.
--:-- Georgia Howe: Unfortunately, federal courts for years have hearkened back to a decision dating to 1977, a case called Trans World Airlines v. Hardison. And in that case, the court used language that subsequent lower courts have confused. It referred to a de minimis or minimal standard of harm under Title VII of the Civil Rights Act. Title VII governs employment discrimination, prohibiting it on the basis of everything from race, sex, to religion and ethnicity. However, it does use language talking about undue hardship as being the standard for which an employer is required to accommodate the religious beliefs and practices of their employee. But the Hardison case had instituted language that never appeared in the Undue Hardship Standard or the text of Title VII.
--:-- Sarah Partial Perry: That de minimis standard allowed employers for years to discriminate against religious employees by showing that something to the effect of no more than a dollar was impacting their bottom line. Finally, the Supreme Court clarified that the language from Hardison had always been misapplied and that both de minimis and substantial burden language was used so that Title VII was satisfied for Gerald Groff. He had every right to be able to be accommodated, and the cost to an empire as big as the U.S. Postal Service was entirely minimal. It's a great outcome, clarifies what's essentially muddied the waters on religious discrimination in the workplace for years. And it should be a welcome relief for people who are religious and who want to make sure they don't have to choose between their faith and their jobs.
--:-- John Bickley: Now, another key ruling this week struck down President Biden's attempt to forgive hundreds of billions in student loans. There are two cases here. The most significant was Biden versus Nebraska. The conservative majority said the administration overstepped its authority and rejected its argument that the HEROES Act applied here. Can you lay out this ruling for us?
--:-- Sarah Partial Perry: In the two student loan cases, the first was actually dismissed for what's called standing reasons. Article 3 of the Constitution requires the redressability or a concrete injury that a court can actually address and fix. These were two individual plaintiffs one who was not eligible for student loans the other who was not eligible for the full amount of forgiveness They couldn't show a concrete injury, and so that case was dismissed. But in Biden v. Nebraska, the court held that at least the state of Missouri had standing, and that indeed it could show through its state arm that managed student loans within the state that there was a concrete harm to the remunerative interest, the pecuniary interest of that precise state agency.
--:-- Georgia Howe: And in fact, the HEROES Act, which was passed after 9-11 to essentially allow suspension of particular regulatory means during times of national emergencies, could not be used to fundamentally transform what the court had originally identified as something intended for a completely different reason. It created a novel and different loan forgiveness program and expanded forgiveness to nearly every borrower in the country.
--:-- Sarah Partial Perry: And there is really no recognition of this court that they will grant to the president or the administration any quarter on use of the executive authority to advance policy objectives not supported by the underlying statutory law. Here, the HEROES Act did not give the administration the authority to be able to fundamentally transform this particular forgiveness program passed after 9-11 into something completely different during the COVID pandemic.
--:-- John Bickley: Alright, so finally, we have 303 Creative. This is another landmark ruling. The court ruled to protect First Amendment free speech rights, siding with the Christian graphic designer. What did the majority argue in this ruling?
--:-- Sarah Partial Perry: As we suspected in 303 Creative v. Olenas, the court ruled 6-3 that indeed a website designer cannot be forced to use her expressive medium of speech to communicate messages with which she does not agree. Many people had believed this to be a religious freedom case. It is not. It is a First Amendment free speech case. And the court was very careful to cite other anti-discrimination cases in which those particular public accommodations laws butted up against the interest of LGBTQ individuals.
--:-- Georgia Howe: Now, Lori Smith obviously had agreed to serve everyone, but was only willing to promote messages with which she disagreed. And it was the promotion of wedding websites that was the fundamental crux here of the issue. Her belief religiously that marriage is between a man and a woman was compelling in terms of how it allowed her to communicate messages expressively. And the court said that indeed wedding websites are a form of expressive speech that regardless of the commercial interest she may have in selling her websites and the fact that her voice is unique, that our long history of First Amendment jurisprudence cannot force an individual to communicate a message with which they disagree.
--:-- John Bickley: Well, Sarah, always so informative and helpful to talk with you. Thanks for joining us.
--:-- Sarah Partial Perry: Thanks for having me on the show.
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--:-- John Bickley: That was Sarah Partial Perry, and this has been a Sunday edition of Morning Wire.
