The Fall of Affirmative Action: How the US Supreme Court Weighs Diversity against Individual Rights

>> John Yoo: My hope is to conduct this session like a law school class, a very large one, unfortunately, but a law school class, which means I'd like to ask you most of the questions, and you guys do most of the talking. So there's a mic there, too, right, excellent.

Okay, you guys got mic, excellent, excellent. So what I'd like to do is, if you have something to say, raise your hand. Someone with the mic will come to you. Just say your name and where you're from or where you're going to school or something about what you're interested in.

Something less than 10 seconds, though. And then at some point, if nobody raises their hand, I'm going to start randomly calling on people. And if you refuse to answer my questions, then I will do what we do in law school was I will start to make fun of you, your parents, your ancestry, until you answer my questions.

So that's what happens when you don't do the reading in law school. You subject yourselves to being the butt of my jokes. So it's best if you all participate and contribute. And I talk as little as possible. Okay, so, wait. I haven't even asked any questions yet. You can't already have your hand up.

Get out of here. Go to law school or something. So this session is about the Constitution and the Supreme Court and individual liberty. So I thought what we might do to start our way into that material is to look at the three major decisions of the Supreme Court this summer, which, all, in their way, involve claims of individual right and liberty against the government.

And maybe after we talk about those decisions, we can come to see some kind of themes or lessons that identify the american approach to rights, maybe different than in other parts of the world or even other parts of the United States itself, which has very big. Could have big regional differences in rights.

And maybe think about how the Supreme Court and the federal judiciary and state judiciaries, what role they play in protecting rights. Maybe they're not playing a big enough role. Maybe they're playing too much of a role. Maybe we'll think about that at the end, too. Okay, so let's talk about the Harvard case first.

Does somebody here want to give a description of what the majority said before? While we're finding a hand up, I'll just describe it for those of you. I can't imagine there's any college student or student here who was not interested in the Harvard case. But if you remember, Harvard used a variety of factors when it made admissions decisions, but whatever those factors were, they had the effect of rather consistent percentages of the freshman class by race recurring year after year after year.

And so a group called Student for Fair mission, I believe, made up primarily of asian students, filed suit and said that violates our right to be treated as individuals, that it's illegal for the government, or people who receive funds from the government to use race when they decide whether to admit me as a student or not.

So does somebody here want to start us off by explaining what they saw as one or a few of the majority's important arguments? Okay, I know someone who has his hand up. Maybe you should, one side of the room, you should be able to.

>> Jose Chavez: I'll make this brief.

>> John Yoo: So your name and where you're from.

>> Jose Chavez: My name is Jose Chavez, and I just graduated from UC San Diego.

>> John Yoo: Congratulations, good.

>> Jose Chavez: Thank you, thank you. So my friend Maximilian and I, we were at SFFA v Harvard, as well as UNC. And after reading the opinion, one of the main takeaways I took was that, well, the federal government has, like, no compelling interest in enforcing diversity in public institutions, including colleges, but apparently not limited to the military.

And this oversight, I remember in the concurring opinion from Clarence Thomas, may lead to the challenging of future doctrines or previous doctrines, such as Obergefell, Lawrence v Thomas, and other cases that were derived from Griswold v Connecticut and its perceived right to privacy. So I saw this as a challenge to federal overreach.

>> John Yoo: Okay, good. So the first thing you said is that what? You can sit down now. The first thing you said. The core. I think this is correct. The core holding, if you want to call it that. The basic bottom line, what the court said was the government does not have a compelling interest in enforcing racial diversity.

Can I ask someone else, why is that important? Why does it matter whether the government has a compelling interest in racial diversity at all? Wait, there's a microphone over here, too. Okay, good. And then with somebody in the back. Go ahead.

>> Robert: Hi, Robert Mack. I just completed an MPA at Indiana University.

It matters because precedent in had basically affirmed the Bakke decision that race was a narrowly compelling interest. And when you're talking about constitutional matters, if you're talking about something that is violating a constitutional right, it has to be a compelling enough interest and narrowly tailored to that compelling interest.

>> John Yoo: Okay, good. So you said two things there. One is, the reason why we care about diversity being compelling government interest is because the court has said if the government is ever going to classify us on the basis of race, it has to have not just some reason or it has to be a compelling government interest and then the means have to be narrowly tailored to achieving that interest.

The second part didn't really matter in this case because once the court said achieving racial diversity is not a compelling government interest, then Harvard and the University of North Carolina, Chapel Hill automatically lost, right? So why is racial diversity not a compelling government interest? So you said and this is also true in the case of Bacchi, which is from the University of California from here in 1978, I think 79.

In the late seventies, the court for the first time had said universities can consider race when they let people in. They can't have quotas, but they can consider race. And then people challenge this decision over and over again. You mentioned a case called and the pair cases from Texas and Michigan.

The court in the early 2220s considered a challenge saying, please overrule Bakke. The court refused. Then another case from the University of Texas just on Just under ten years ago, Cuff Fisher, the court got asked again to overrule Bakke and it refused. So look how hard it is to change the law.

Actually, Bakke was on the books for 50 years. We might talk about it a little later. But if you think about Roe versus Wade, I talked about in this class last year. Roe versus Wade was on the books for almost exactly 50 years before it was overturned in Dobbs.

So law does change, but it changes. It took a half century for the court to change its mind, but let me ask somebody else then. Why do you think race was okay? Racial diversity was okay for 50 years and then now it's not. So somebody, okay right here, about, right here.

Yeah.

>> Jodie: Hi, Jodie Hendon. I'm from Kansas. Is it because we have the right to equal treatment under the law?

>> John Yoo: Well, in both cases, we do. Don't sit down yet. Don't sit down yet. You still got more to say, I know. So in both cases, you're right, that was the right.

The students here, the students in Fisher, the students in Grutter, the students back all the way in baccy, they all said we have the right to be to equal treatment under the law. That right is violated when the government just classifies us as part of racial groups. That's what most people think the constitution means, right, equality.

But what about what the university said, which was, but to do our job of education, we need to have a racially diverse classroom. And by the way, once Bakke was on the books, universities did this with everything else, faculty hiring, all kinds of things. They're saying, well, we also need to have racially diverse professorate, racially diverse researchers and on and on.

So you're right that, that's the claim. But 50 years ago, the court said, well, the right to racial diversity overcomes this right to equal treatment. Just this last month they said, no, it doesn't. So what do you think made things? What's the difference you think?

>> Jodie: Were they not bringing in certain kinds of students?

Because they were, they were discriminating against once a group of students in order to have a diversity of another kind of students?

>> John Yoo: That's good. The chief justice says, admissions is a zero sum game, right? He says that and that's the language uses. So to have racial diversity to increase some races, you just by the nature of limited college seats, you have to reduce other races.

I don't think anybody takes issue with that. Okay, good, yeah, that's one thing to say. So one thing is that there's a zero sum element to admissions because there's a limited number of seats. In fact, I think one of the justices and one of their separate opinions says, you could start to solve this problem by just making the college student size is a lot bigger.

The population of the country is much larger than it was at the time of Bakke. But the size of Harvard's freshman class, I'm sure, has not increased, maybe even 100 students since then. So you could always do that. But Robert says, these elite universities keep fixed number of students.

So that's not really an answer, it's a zero sum game. Okay, so that's one factor. Anybody else over here, yeah? Again, why do you think the court changed its mind between 50 years ago when it said you can use race to make emissions decisions to just this summer when it said, no, you can't?

>> Valerie: Hi, my name is Valerie. I'm a student at Grinnell College and I just completed an internship at Chicago district's legal office at the EEOC. So super interested in this, but I guess the answer to two questions. The reason why the court for years said that race should be considered in admissions is because universities argued that they have the right to be able to make up their classroom according to what would bring a diversity of opinions and thoughts into their classroom.

And universities argued that race would be one way in which that could be put forward. The reason that that changed now was, well, there have been so many cases that where the court had been pushing back from Bakke to Texas to Garvey Bollinger saying that race can be considered, but it's not.

Today the court got majority, but today, what is something that Clarence Thomas has been pushing for a couple years now is considering race in admissions and using as a tipping factor at one point seems to define what that student's identity is. And race is not the only thing that a student can come in when they're in a classroom, that's not the only thing that they're going to ascribe to.

Just because a student is one racial minority, they're not going to ascribe to a certain thing or bring a certain ideology. And ultimately, I think that's what SFER Harvard argument.

>> John Yoo: Good, so what the universities had said and even say it at the time of Bakke is that we wanna have diversity of thought in the university, diversity of thought in the classroom like this.

Our meeting together, according to universities is enhanced if we have lots of different viewpoints and perspectives. Because the more you hear different sides, the more you're hopefully going to get to the right answer. It's a variation on this famous metaphor for free speech called, you've probably heard of it, the marketplace of ideas.

It's a very American way of thinking of free speech. Just throw all the ideas into a giant pot, shake it around and the best one will come out through competition. Marketplace of ideas, education is similar. You have all these different intellectual backgrounds and ideas and views come into the classroom, we discuss them all.

Eventually, you get the right answer. That's not true. Cuz otherwise, you don't need professors. That can't be possibly true, right, and the professor's kind of there to help just guide it. This process of competition of ideas, what the court said, this is the. You put your finger on it.

The step that the court made in these earlier decisions was to say universities could use race as one of the proxies for that kind of ideological and intellectual diversity in a classroom. The court openly said this. It just said, when you make a decision, you're allowed to use race as an indicator of intellectual diversity.

The universities never said that diversity in and of itself leads to the better education. It was diversity of ideas that leads to better education. And so, as you say, the court agreed with that view as recently as ten years ago and 20 years ago and definitely 50 years ago, and it changed its mind.

It said, now we no longer think race actually correlates with your point of view. So if you said we're gonna have people of five different races in a room, the court basically says we don't have. It's wrong to assume each of those people, cuz they're of a different race will have different ideas, right?

Race can't be a proxy for your ideas anymore. So why do you think the court believes that now in a way they didn't before? I think that's your. That's the crucial difference. All the way in the back.

>> Speaker 6: Yeah, exactly.

>> Don Parker: Thank you. So, I'm Don Parker, recent graduate from Harvard University.

And I think the answer to your question is, the makeup of the court has changed. I don't think it gets reversed ten years ago. And to some extent, public opinion has changed, which also influences the court.

>> John Yoo: So here we have the political answer, right? Who got to appoint three justices to the Supreme Court in the last presidency?

Trump, and some of those justices replaced older justices who voted to affirm affirmative action. And these justices voted the other way. The most important one is probably Brett Kavanaugh, because if you look at Justice Gorsuch replaced Scalia. Scalia was an opponent of affirmative action. Kavanaugh replaced Kennedy, who was the key vote to uphold affirmative action ten years ago.

And Justice Barrett replaced Justice Ginsburg, who herself was also a strong supporter of affirmative action. So he says the political answer, this was just three new appointments to the Supreme Court. But then he also said, public opinion. Does anybody know what the polling is on race-based affirmative action?

Right here?

>> Leila: So, hi, I'm Leila. I graduated from Rice, but I work in cybersecurity now. Now, my understanding of polling is that this varies a lot based on how you ask the question. So I don't remember which one is correct, but for one of them, the phrasing is, should the Supreme Court overturn this affirmative action policy?

The other question is, should race be a factor in college admissions? And it seems like the public has what you would. You'd think they'd be consistent, but they're not consistent in that polling. So I don't think we have a super clear answer on how the public feels about this.

>> John Yoo: So, I mean, put aside the court, just the question of if you were voting yourself not on the law, but just the public policy, on the use of race in government decisions, what do the polls show?

>> Leila: I believe that was the one where the polls said people do not support that.

The use of race, and that's actually true across different racial groups in the US, all landed on not using race as a factor.

>> John Yoo: Yeah, by varying sizes of the majority. But I think, actually, almost every single racial group and demographic group disapproves of the use of race.

So if you were taking the pure political approach, right, power to the people. You and I are old enough, it looks like, to remember when people used to do that, right. The court's just responding to political incentives or political action. Right, a president wins an election, that president appoints people who seem to put into place the policy, not the law.

We're just talking about the policy, right, that's favored by a majority of the electorate, right? Should that be the court's job? Is that what the dissenters say? What did the dissenters think of this, right? This is, in fact, some of the dissenters say exactly this. They say it's wrong for a president to get to pick three justices who just split the court's views.

And all of a sudden affirmative action was okay for 50 years, and now all of a sudden it's not. Is that really wrong, or is that right here? Is that okay?

>> Noella: Can you-

>> John Yoo: Yeah, there we go, yeah.

>> Noella: Hi, my name is Noella. I'm from Brandeis University.

I'm a graduate student. I wanted to ask, it's kind of a why. Yes, this affirmative action ruling, why does it apply to one sector and not the other? And this, I mean, yes, it works for universities, but when we go to military school, where people are going to put their.

>> John Yoo: I bet when you read a book, I bet when you read a book, you read the last chapter first, because we're going to get to that at the end.

>> Noella: Yes, I wanted for us to discuss about that.

>> John Yoo: Jose, when he started us off, he was right to say, there are now lawsuits and questions being raised about the use of race in all kinds of other contexts because of this decision.

In particular, I think actually there is a lawsuit that's just been filed against the military academies and the military in general. So that was where I was gonna go at the end, but let me just answer very quickly. When the law changes, it took 50 years, as we pointed out here, but now that it's changed, it's going to, the principle of the case will now be fought over in lots of other contexts, too.

Actually, the most important context is probably not the military. It's going to be hiring by companies, because a lot of companies have their own race based affirmative action programs of various kinds. Corporations used to say, but we're not part of the government. Remember, you said the right is that the government treat us equally.

The constitution does not require that we each other treat us equally. You can be as racially bigoted and discriminatory as you want to each other. You have no right against other people to be nice to you. I actually like it when people are mean to me, but I would sue for people to be mean to me.

But you could say, why can't I sue for people to be nice to me? It's because the right is against the government. So the next big area is going to be, can someone use these decisions to sue companies to stop using race? Because is Harvard an arm of the government?

Anybody here go to Harvard? You think it probably is? They have more money than most governments. You, yeah. Harvard is not part of the government. So why does Harvard have to follow her rule? The government can't. The government has to treat us equally. Anybody know over there? I deliberately call on people all across the room so these guys get a workout with the microphone.

So why is it that Harvard has to treat anybody equally? They're, right, a private university.

>> Michael: Hey, I'm Michael. I actually went to Harvard. And a key reason is that Harvard gets more than $600 million in federal funding each year and is subject to a bunch of federal regulation under the Higher Education act as a result.

>> John Yoo: Good, Harvard, there's something called the Higher Education Act. Some of you might have heard of title IX, which says any university receives federal funding, has to treat the sexes equally. And that law has been used to greatly expand women's sports on campus. There's a similar provision in the Higher Education act that says if you get federal funding, you also are, and this is one thing the court made clear, you're basically subject to the same restrictions on race that the government undergoes.

So you can't discriminate on the basis of race if you receive federal funds, too. So this is where the action and litigation is coming next is, what if you're a defense contractor and you get a lot of money from the government? Suppose you're Google or Microsoft and you have a lot of government contracts.

Can you now be sued under the same theory that was used to sue Harvard, right? They're not under the Higher Education act. But there are other laws which may, we don't know yet, require equal treatment by anyone who receives any federal money in contracts or anyone who does business in the national marketplace.

So we're going to see that's what will be the future. So the military academies. Is actually kind of a small footnote. It actually is a small footnote in the opinion. The more important thing for all of your lives is well companies now have to operate in the same way that Harvard operates.

>> John Yoo: Any other questions? I mean just since we're on that point, any other questions about what the future holds in terms of the Harvard case before we. I still wanna get back to what does this dissent say. So I think we've done a good job laying out the majority opinion.

The use of race violates the right of equal treatment. In order to use race, therefore, you have to have a compelling government interest. Having racial diversity in the classroom is not a compelling government interest. In fact, one little side note, what the Court says. The Court says we have extinguished the use of race in lots of other areas than the classroom, like K-12 education.

Brown vs Board of Education, can't use race in primary, secondary education. We don't allow its use in government spending, government contracting. We don't allow its use when the government gives out licenses, and privileges, and benefits. But there was an exception for universities that had existed for 50 years.

So what does the dissent say? Anybody wanna take up the side of the dissent? I thought I saw a hand up. Well you don't even have to be on the side of the dissent. Just tell me what did the dissent say about this majority view? Okay, right there.

>> Chad: Hello, Chad Bokamp, I go to USC down in Los Angeles. It seems Kagan said something different from the other two. Her standing was that, I think her idea was, wait, I'm sorry, that was the Nebraska case. I think I'm getting ahead of myself, I don't know what specifically she said.

But it seemed as though they wanted to use the, they kinda had the moral idea that these policies were efficient and essentially equalizing society in the sense that past discriminations can be fixed with these, and therefore, we ought to, as a proactive measure, employ them.

>> John Yoo: Okay, good.

So the dissent's main argument was, as you say, we have had a society where there was massive discrimination on the basis of race. There was slavery, and then there was official Jim Crow segregation in the southern states. Why can't society try to remedy that past discrimination that went on for decades?

There's a great blot on American history, why can't society today still try to make up for it? The phrase that you see in the dissents is remedial. Affirmative action is remedial, it's repairing the harms that were inflicted because of slavery or because of segregation. And there's a very powerful argument, that was the argument that has prevailed in these cases that were overturned by the Court.

What's the majority's response to this claim that affirmative action is constitutional because it's remedial, it's making up for racial harm, harm inflicted by the government on the basis of race in the past? Sir, here.

>> Charles: They hold that it's a violation of the equal protection clause of the 14th Amendment, and that people should be viewed as individuals primarily and not merely as a subset of a group.

As such, you shouldn't be discriminating on the basis of race for that reason.

>> John Yoo: You didn't say your name and where you're from.

>> Charles: Charles Hillsdale College.

>> John Yoo: Okay, so are you saying that you can never use race to give a remedy? So what about, for example, and this is one of the things the dissent says.

What about all the programs that were created right after the Civil War for all the African Americans who were freed from slavery, were those all unconstitutional?

>> Charles: I'm not sure.

>> John Yoo: You'll never make it on the Supreme Court. One thing they never say is I don't know, or I'm not sure.

So does somebody else? What about all those programs, right, that were on the basis of race right after the Civil War? Or to bring it more close to our time, what about remedies that we want to create to make up for segregation in the south, which went on well into the 70s, de facto if not de jure?

>> Charles: I guess I was more prepared for the first one.

>> John Yoo: But I Okay, either one.

>> Thomas: Immediately following the Civil War, you could make the argument that you're not treating those individuals as-

>> John Yoo: So this is the rebellious side of the room, because you refuse to identify yourselves.

>> Thomas: Sorry.

>> Thomas: My name is Thomas I work at Northwestern College as a research fellow.

>> John Yoo: Okay.

>> Thomas: I mean the individuals immediately following the Civil War, you could make the argument that we're not identifying based on their race. We're identifying them based on the injuries that they've received based on the treatment.

>> John Yoo: Yeah, so, good. So the idea of a remedy is you actually provide it to people who have suffered the harm. And so one thing the majority says is we're not saying you can't provide a remedy for someone who suffered a harm, but you can't just draw it as an entire class.

It has to be individual by individual almost, you have to be able to show that you suffered segregation or you suffered discrimination based on race. And so that's one thing that the dissent takes issue with the majority, because they say look at American history. It's no secret that a single racial group was aimed at by slavery or segregation, so why should the remedy not be specific to that group?

The majority's response is but the idea of, and this is why it's an individual rights issue in a way, is the plaintiffs have an individual right not to be treated equally. The majority says, actually, if you suffered harm you have an individual right to receive a remedy, and it may involve your race if the harm was originally because of your race.

But you can't use just your race as a proxy, that everybody in your racial group should get a remedy. You have to show that you were harmed on an individual basis. I just wanted to point out about this case that is so focused on individual rights, not group rights, which is very different if you read about the rights structures in other countries.

The idea of group rights is much more popular in other parts of the world, they're much more popular amongst some political theory departments in the United States. But this idea that it's really the individual you look at is why this decision comes out the way it does. Mm-hm.

Then we'll switch to the 303 creative case, because we wanna talk about less controversial things like gay marriage next. Go ahead.

>> Raina: Okay, that's gonna be fun.

>> Raina: Yeah, so my question regards the point about individual harm.

>> John Yoo: Every single person in this side of the room, which I will point out is on my left, refuses to obey traditions and customs of identifying yourselves by name.

>> Raina: My name is Raina, I'm a rising junior here at Stanford. And my question comes as just if we're talking about recognizing individual harm, because harm is a very strange thing to quantify. So what are our metrics for identifying individual harm, and what can we use to ensure that there isn't, for lack of a better phrase, discrimination within the characterization of individual harm?

>> John Yoo: So I'm gonna show I'm never gonna be on the Supreme Court too, cuz I don't know, I'm uncertain as well. That's what the future cases will also be about, which is if you see more of these lawsuits are gonna arise in new contexts, that's And that's why the American system is case by case, because we really do believe the facts of each dispute matter.

That's too hard to set a blanket rule out. So I'm not gonna say, you can never use race. The government can use race when it gives you a remedy, but it can't be a blanket remedy for everybody. It has to be one by one. The way our system works is we don't know until people bring the cases and we see how it works out individual facts.

Maybe companies will be treated differently than the military, and the military might be treated differently than other, universities in their hiring practices, for example. We won't know until we get the cases, and that's another. So this is very interesting to think about. This really weird way, if you think about it, to make social policy is not by saying, here's all the costs and benefits, and I am the emperor of the world and I figure out the most efficient policy for society.

I won't pose it immediately at the beginning. Notice how Jose started off on this road. How are we gonna set the policy? Case by case all got to go to the Supreme Court, and it's going to be done piecemeal, and each factual setting will make a difference. So I can't tell you yet, but we're gonna find out over the next few years.

And there's cases being brought on both sides by both parties to try to figure out exactly the answer to your question. I just want to point out, though, is a very peculiar way. If you ask people in other countries, they'd probably be shocked. You set higher education policy by having cases go to the Supreme Court that take 50 years to litigate and figure out the policy.

And then it really depends on how that university ran that policy, cuz if anybody studied the case and how Harvard made its admissions policy, they did it in a really weird way, right? They had academic scores, and then they had scores for, I think, leadership and extracurriculars. And then they had the all important personality score where Asians all ranked at the lowest in person.

That may be true of my parents, but I don't think I would be in the lowest personality quadrant. I also think that you couldn't stick a billion chinese people into the lowest personality quartile. But, right, that might have been completely different if the facts of how, say, Boston University did its own admission system and didn't have these weird boxes, and the racial groups really, right, coalesced in different boxes altogether for different admission criteria.

The facts make a big difference when you decide policy case by case. People in other countries think this is a crazy way to make policy. So it's one thing to think about, but it's because we define our policy way by respecting individual liberty. And so it depends on the facts of each case.

Question before we turn to 303 creative.

>> Andrew: Hello, my name is Andrew Liu. I'm an incoming student at Yale Law School.

>> John Yoo: You are so in the bottom quartile for personality then. How did you get in?

>> Andrew: I just had a question about, particularly the decisions in regards to the facts of the case.

So given the facts of the case that you just detailed with the personality scores, why did the lower court say that the facts of the case did not violate even the grutter standard? Because it seems to me that the way that Harvard was doing the admissions using the personality scores, that wouldn't have even passed the Grutter standard.

>> John Yoo: So this is very interesting. This is another element of the case that actually spills over into the other cases and actually, strangely, will be really important for how the court decides high tech issues. So the lower courts, no lower court throughout any college admission system ever challenged, right?

So why? And the Supreme Court says, one thing we did under baccy and one thing we did under these Texas cases is we deferred to the views of the experts. Who are the experts? University administrators and university faculty. They told, remember you were asking, well, how did this conjunction between racial identity and ideological diversity get made?

It was made by professors and administrators. They told the court, we need to have racial diversity, to have ideological diversity. And that was a fundamental part of the holdings of the earlier cases going all the way to Bacci. And so the lower courts did the same. When Harvard was challenged in the lower courts, the lower courts said, just like the Supreme Court told us to, we are going to defer to the views of the people whose job it is to run universities.

This is one remarkable thing in the majority opinion. I suggest you look at it. Chief Justice Roberts says, we took your word for it. And then he says, just very bluntly, we do not take your word for it anymore. We believe we were misled by the universities. It's really a striking comment.

To say we will no longer trust the people who run universities to tell us how the educational system should work seems crazy, right? Like, who are the judges to think they know how to run a university? And this is happening in lots of other areas of constitutional law, too.

The court is rejecting the idea that it should listen to experts. I think Scott just touched on this in his presentation. We looked at the COVID lockdowns. Initially, the Supreme Court allowed the lockdowns. They even allowed the shutdown of churches when bike shops were open because they said that we defer to the public health administrators.

That happened in the first year of COVID In the second year of the COVID lockdowns, the court said we are not listening to the experts about COVID anymore. We are striking down, for example, the national vaccine mandate. We're striking down, for example, the rent, I'm sorry, the eviction moratorium.

I was going to get to this in the third case, but I'll say the third case about canceling all of your debt. Last year, I would have said borrow as much money as you can. Now, I would say be cautious because the court said we're not going to defer to the Biden administration, education officials about whether they have the power to cancel student debt under what's called the Heroes act.

So this is something. It's a good point cuz it runs across lots of areas of constitutional law. It's just really striking in this case, the court is not going to listen to experts anymore. They feel burned by it, actually. It's very interesting. Good, was there another? You have hand up here.

Okay, we are gonna talk about gay marriage sooner or later, before the hour is over. Okay, perfect, awesome. There you go.

>> Abrielle: I'm Abrielle, I'm from Rollins College in Florida. I'm studying policy there. I have a question-

>> John Yoo: Haven't renamed the DeSantis School of All Knowledge yet?

>> John Yoo: Yeah, just kidding.

>> Abrielle: So actually, in line with that, the case talks about specifically with past decisions, precedent with Gretter and Bollinger and back actually, specifically the necessity of academic free speech and how that related to the constitutional permissibility of this. And I think with the conversation of experts, it was my understanding that that was why they had to deferred because they do have a compelling interest in preserving academic free speech for the reasons that we've discussed.

And if I may, I have a secondary question.

>> John Yoo: Okay, let me answer your first question, but I don't know if we should do secondary questions. We only have 15 minutes left.

>> Abrielle: I'll save it, thank you.

>> John Yoo: Okay, good. So this is really interesting because what the court was essentially doing, you're completely right.

Academic freedom, which sort of comes from free speech to the court, until this summer, meant we will accept the views of the people who run universities about how best to protect academic freedom, how best to respect free speech on campus. What did they say this summer? No, we're not.

Not anymore. We're going to decide how best to protect free speech on campus. Now, my older student, we look like we're from the same generation. This is a very surprising result. It seems to me that a university of judges are now going to start telling universities how to protect free speech on campus.

It used to be that the students and the faculty were in favor of free speech, and it was the rest of society that wanted to stop them. But now he made the point. Maybe the court's reacting, right, to political pressure or public views. Maybe this is affected, I'm not sure.

Maybe it's affected by this growing view in the public that free speech is under threat on campus. If you believe that, then why would you defer to these university administrators who've been screwing things up now. That would be very interesting study to actually see the timing and publicity of these events, of cancel culture on campus and whether it might have had something to do with the way the justices thought about this, right?

Because if you don't think free speech is being protected on campus, why would a court defer to the people responsible for that culture? So I think that's what's happening.