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Harvard Legal Fight & Trump Firings Okayed · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
0:08
Speaker 2: A ninety year old legal precedent setting up independent agencies
0:13
Speaker 2: isn't dead yet, but after the Supreme Court's emergency order
0:17
Speaker 2: last week allowing President Trump to fire members of two
0:21
Speaker 2: independent agencies, the effect may be the same. The Court's
0:25
Speaker 2: nineteen thirty five ruling in Humphrey's Executor said that Congress
0:30
Speaker 2: in some instances can set up agencies that are independent
0:34
Speaker 2: from the executive branch and whose members can only be
0:37
Speaker 2: fired for cause. But in recent years the Supreme Court
0:41
Speaker 2: has significantly cut back on Humphreys, and last Thursday, over
0:46
Speaker 2: the descents of three liberal justices, the Court allowed Trump
0:49
Speaker 2: to fire National Labor Relations Board member Gwyn Wilcox and
0:54
Speaker 2: Merit Systems Protection Board member Kathy Harris without cause as
0:58
Speaker 2: their legal challenges play out. My guest is Lauren McFerrin,
1:03
Speaker 2: senior fellow at the Century Foundation and former chairman of
1:06
Speaker 2: the NLRB in the Biden administration, tell us about the
1:10
Speaker 2: Supreme Court's emergency order last week.
1:13
Speaker 3: So what the Supreme Court did was stay and order
1:16
Speaker 3: of the District Court, which had ordered the reinstatement of
1:19
Speaker 3: Gwynn Wilcox and Kathy Harris, and the removal of Gwynn
1:25
Speaker 3: and Kathy from office was clearly contrary to statute. The
1:29
Speaker 3: President is prohibited by both the National Labor Relations Act
1:33
Speaker 3: and the law governing the Merit Systems Protection Board from
1:37
Speaker 3: removing people from office except for cause, and no qualifying
1:40
Speaker 3: cause was given to either of these officials, so the
1:44
Speaker 3: action was clearly contrary to law. And so the President
1:47
Speaker 3: kind of took the law into his own hands here
1:49
Speaker 3: and basically said, I don't care what Congress wanted, and
1:52
Speaker 3: I don't have to follow Supreme Court precedent, and he
1:54
Speaker 3: removed them from office anyway. The Supreme Court then stepped
1:57
Speaker 3: in and on what's called the shadow dockets, which is
2:00
Speaker 3: supposed to be for emergency relief and emergency orders, indicated
2:06
Speaker 3: that the President was right to do that, but it
2:08
Speaker 3: is okay for him to ignore Congress and to ignore
2:10
Speaker 3: Supreme Court precedent, and kind of went to extraordinary lengths
2:13
Speaker 3: to keep that result in place because they basically think
2:16
Speaker 3: the President took a good gamble about their plans to
2:19
Speaker 3: revisit precedents. So it was very unusual from a court
2:23
Speaker 3: process perspective. The so called shadow docket is supposed to
2:27
Speaker 3: be used for, like I said, emergencies. It's typically also
2:30
Speaker 3: used to preserve the doctrinal status quo, not to overrule it.
2:36
Speaker 3: You're certainly not supposed to use the shadow docket to
2:38
Speaker 3: effectively change precedent without the benefit of full briefing and
2:42
Speaker 3: careful consideration, which is what the descent pointed out. So
2:46
Speaker 3: it was a procedurally very odd thing to do, but
2:49
Speaker 3: it certainly sent a very strong signal about where the
2:53
Speaker 3: Supreme Court is headed in terms of whether it plans
2:57
Speaker 3: to overrule Humphrey's Executor, which just the decision that had
3:02
Speaker 3: originally upheld Congress's ability to create positions like this that
3:06
Speaker 3: can only be removed from office by the President for cause.
3:10
Speaker 2: So, according to the dissenting justices, the effect of this
3:14
Speaker 2: is essentially to overturn Humphrey's Executor.
3:18
Speaker 3: I think that will be the practical reads that a
3:21
Speaker 3: lot of people take away from it. Now. The Majority
3:23
Speaker 3: did ultimately hedge on that question. The Majority said that
3:26
Speaker 3: they're not ultimately deciding whether these two agencies fall within
3:31
Speaker 3: the recognized exceptions of Humphrey's executor. That does suggest that
3:36
Speaker 3: there still will be some recognized exception, but they signaled
3:41
Speaker 3: pretty clearly that they didn't think either the National Labor
3:44
Speaker 3: Relations Board of the Merit System's Protection Board would fall
3:48
Speaker 3: within that exception.
3:50
Speaker 2: Tell us about Humphrey's executor, it's sort of been on
3:53
Speaker 2: the way out or people have been calling for its
3:56
Speaker 2: demise for a long time.
3:59
Speaker 3: I mean Humphrey's Executive. There's no question that it is
4:01
Speaker 3: still good law. The case that everyone cites for the
4:06
Speaker 3: proposition that Humphrey's Executor is on the way out the
4:09
Speaker 3: door is a case called steal a law, and steal
4:12
Speaker 3: a law was very careful to say that Humphreys still
4:17
Speaker 3: is good law and that they were not revisiting Humphreys.
4:20
Speaker 3: But what they did was that they certainly said they
4:22
Speaker 3: were not expanding Humphrey's Executor, who encompassed independent agencies that
4:28
Speaker 3: aren't like the Federal Trade Commission that was the original
4:31
Speaker 3: subject of Humphreys itself. So they were unwilling to expand
4:36
Speaker 3: the reach of Humfrey's Executor. This exception that allows Congress
4:40
Speaker 3: to create entities who leaders can't be removed except for cause.
4:46
Speaker 3: They were going to expand that exception to a single
4:50
Speaker 3: headed agency like the Consumer Financial Protection Bureau. But it
4:54
Speaker 3: is very clear that Humphreys at this point in time,
4:58
Speaker 3: or at least until this order issued, that Humphreys itself.
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Speaker 3: But the exception it creates for quasi judicial and quasi
5:05
Speaker 3: legislative agencies that are structured like a multi member body
5:10
Speaker 3: like the National Labor Relations Board of the Merit Systems
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Speaker 3: Protection Board still exists, and that exception is still valid.
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Speaker 2: The Supreme Court in recent years has cut back on Humphreys.
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Speaker 2: I mean, it's still standing, but is it in sort
5:24
Speaker 2: of chatters.
5:25
Speaker 3: I think it's safe to say that the Court has
5:27
Speaker 3: constrained its reach and has at times, you know, one
5:33
Speaker 3: or two justices in a separate opinion or indicta in
5:38
Speaker 3: a majority opinion, have called into question its continuing viability. Basically,
5:44
Speaker 3: this notion that there can be an entity, even if
5:48
Speaker 3: it is structured like a multi member body, even if
5:51
Speaker 3: it is a body of experts that's supposed to make
5:54
Speaker 3: expert decisions, that there could be an entity like this
5:59
Speaker 3: that would not be sufficiently executive in the nature of
6:03
Speaker 3: the powers that it is exercising, such that its leaders
6:08
Speaker 3: should not be removable by the President. I mean, that's
6:10
Speaker 3: the core issue here for proponents of the unitary executive
6:14
Speaker 3: theory on the Court is that any entity that is
6:17
Speaker 3: exercising any level of executive power should be removable from
6:22
Speaker 3: office by the President. And the Court has certainly said
6:25
Speaker 3: signals in recent years that it thinks the scope of
6:28
Speaker 3: the universe of agencies that might actually not exercise any
6:32
Speaker 3: executive power is minimal or non existent.
6:37
Speaker 2: The justices took pains to point out that this doesn't
6:41
Speaker 2: affect the FED. The FED is different.
6:45
Speaker 3: Yes, that was a really strange little red flag in
6:48
Speaker 3: this decision. It kind of comes out of nowhere in
6:51
Speaker 3: the decision. They might as well have basically said, oh,
6:55
Speaker 3: by the way, President Trump, please don't take this order
6:58
Speaker 3: as a green light. You can fire the chair of
7:00
Speaker 3: the FED. And they carved out the fad in like
7:03
Speaker 3: two sentences. What it wasn't an issue in the case.
7:07
Speaker 3: And they carved out the said by making what is
7:09
Speaker 3: basically a factual observation about the set, which is that
7:12
Speaker 3: it is uniquely structured and it has a distinct historical tradition.
7:16
Speaker 3: That is actually true of many independent agencies right now,
7:21
Speaker 3: my own agency that I used to work for, the
7:22
Speaker 3: National Labor Relations for that is certainly true. It is
7:25
Speaker 3: uniquely structured, and it has a distinct historical tradition, But
7:30
Speaker 3: that doesn't speak to the reasons why the FED is independent,
7:35
Speaker 3: which are fundamentally similar to the reasons that other independent
7:39
Speaker 3: agencies are independent. The reason that Congress chose to create
7:44
Speaker 3: independent agencies is because it wanted to have entities, even
7:47
Speaker 3: entities within the executive branch, that made decisions based on expertise,
7:53
Speaker 3: and that made decisions and were capable of making decisions
7:57
Speaker 3: that might be in the short run politically unpopular, but
8:02
Speaker 3: in the long run in the best interest of the country.
8:04
Speaker 3: And it's very easy to see, of course, how that
8:06
Speaker 3: plays out in the context of the FED, and particularly
8:09
Speaker 3: when the FED is wearing its monetary policy hat, it's
8:12
Speaker 3: very easy to see why it's going to have to
8:15
Speaker 3: make decisions that are short term politically unpopular but long
8:19
Speaker 3: term beneficial to the country. But the SEED is not
8:22
Speaker 3: unique in that regard. And one agency that leads to
8:25
Speaker 3: my mind, for example, is the Consumer Product Safety Commission.
8:28
Speaker 3: Sometimes it is very politically unpopular to find a product
8:33
Speaker 3: to be unsafe, to pull a product off the market,
8:35
Speaker 3: but it might well be in the long term public interest.
8:38
Speaker 3: So there's not something that makes the FED distinguishable in
8:41
Speaker 3: a principled manner from other independent agencies when it comes
8:45
Speaker 3: to the reason for its independence.
8:47
Speaker 2: Let's say the Supreme Court does get rid of Humphrey's Executor.
8:51
Speaker 2: What might the repercussions be, Well, it would.
8:54
Speaker 3: Depend on how the Supreme Court did it. There's a
8:57
Speaker 3: lots of people who predict about these things, and there's
8:59
Speaker 3: a group of predictors to say that they will basically
9:01
Speaker 3: get rid of Humphrey's Executor, but carve out the set,
9:03
Speaker 3: or at least the set in its monetary policy role.
9:07
Speaker 3: I think there's an argument to be made that they
9:09
Speaker 3: could also kind of fl the baby in different ways.
9:12
Speaker 3: I think one of the most difficult challenges that we
9:16
Speaker 3: will have in a post Humphrey's Executor world if Humphrey's
9:19
Speaker 3: Executor is swept off the book, is what to do
9:21
Speaker 3: with agencies that are primarily adjudicative, you know, that do
9:25
Speaker 3: business as courts basically. And it's very hard to imagine
9:29
Speaker 3: how an agency that's sposed to function as a court
9:33
Speaker 3: will function when it's adjudicators can be fired for the
9:36
Speaker 3: outcome of individual decisions. So I think there's potentially a
9:40
Speaker 3: chance that the Court could also look at the various
9:42
Speaker 3: functions that agencies are performing and say these are executives
9:47
Speaker 3: and these are not executives. And this order, being a
9:49
Speaker 3: preliminary order, doesn't delve into that at all. But you
9:52
Speaker 3: could have a course that says, well, if an agency
9:55
Speaker 3: is making rules, it is by nature executive, because rulemaking
9:59
Speaker 3: is an executive function. But leave open the question, for example,
10:02
Speaker 3: of whether if an agency was truly just a court system,
10:05
Speaker 3: you know, like the tax courts or something like that,
10:08
Speaker 3: whether that potentially could be treated differently. So I think
10:12
Speaker 3: it's a question of whether the court will just wipe
10:14
Speaker 3: Pumper's executor off the books altogether, with some possible car
10:17
Speaker 3: about for the FED and monetary policy, or if it
10:21
Speaker 3: will kind of pick and choose which agency functions it
10:24
Speaker 3: seems to be so executive in nature that the president
10:29
Speaker 3: must be able to control them.
10:31
Speaker 2: And as far as your old agency, the NLRB, what
10:35
Speaker 2: effect would it have if the president is able to
10:38
Speaker 2: fire board members without cause.
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Speaker 3: I think it's really hard to overstate how different that
10:45
Speaker 3: would be from the way that the agency operates now.
10:49
Speaker 3: The NLRB and many other adjudicative agencies. Like I said,
10:52
Speaker 3: the NB does business primarily by deciding cases like a court,
10:56
Speaker 3: and we as judges never had to worry about whether
11:02
Speaker 3: our decisions were going to be politically popular or politically unpopular,
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Speaker 3: or whether we were deciding a case in favor of
11:09
Speaker 3: somebody that the president was friendly with or someone that
11:12
Speaker 3: the president was not friendly with. I think you can
11:14
Speaker 3: see this playing out totally differently in a world where
11:17
Speaker 3: board members, I eeds, the judges could be fired for
11:22
Speaker 3: the outcome of a particular case. So it will go
11:25
Speaker 3: from being an adjudicator that jealously guards the integrity of
11:30
Speaker 3: its adjudicative process and tries to treat like cases similarly
11:35
Speaker 3: whenever possible, to being a fundamentally different and political entity
11:40
Speaker 3: where judges are making decisions at the peril of their
11:44
Speaker 3: job based on their predictions about whether they'll face backlash
11:47
Speaker 3: for them or not.
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Speaker 2: Thanks for joining me, Lauren. That's Lauren McFerrin, senior fellow
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Speaker 2: at the Century Foundation. Coming up, Trump versus Harvard. This
11:56
Speaker 2: is Bloomberg. Donald Trump has been waging a campaign to
12:02
Speaker 2: pressure elite colleges to make a wide range of policy changes,
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Speaker 2: and Harvard University, the nation's oldest and richest university, has
12:12
Speaker 2: borne the brunt of it.
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Speaker 1: They have fifty two billion dollars as an endowment. They
12:16
Speaker 1: have fifty two billion dollars, and this country's paying billions
12:21
Speaker 1: and billions of dollars and then give student loans and
12:24
Speaker 1: they have to pay back the loans. So Harvard's going
12:26
Speaker 1: to have to change its ways.
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Speaker 2: The administration has already moved to freeze more than two
12:32
Speaker 2: point six billion dollars in federal research money and block
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Speaker 2: Harvard's ability to enroll international students. The latest escalation, the
12:42
Speaker 2: administration is moving to cancel all remaining federal contracts with Harvard,
12:47
Speaker 2: worth an estimated one hundred million dollars, and Trump is
12:51
Speaker 2: also threatening to divert three billion dollars of grant money
12:55
Speaker 2: away from Harvard and give it to trade schools. My
12:58
Speaker 2: guest is Jody Farie. He's a partner in the higher
13:01
Speaker 2: education practice at Church Church, Hittle and Antrim. Let's start
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Speaker 2: with the Secretary of Homeland Security, Christie Nome, revoking Harvard's
13:12
Speaker 2: certification to host international students. And it didn't take long
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Speaker 2: for a judge to use you a temporary restraining order
13:19
Speaker 2: to stop that from going through. What was Harvard's argument
13:23
Speaker 2: against what the Department of Homeland Security had done.
13:26
Speaker 4: I think what Harvard's position was is that that the
13:30
Speaker 4: very act of doing that was you know, quashing their
13:33
Speaker 4: First Amendment free speech rights because of the nature of
13:38
Speaker 4: what they were saying. You know, they were indicating Baby
13:41
Speaker 4: administration were indicating that Harvard was, you know, fostering and
13:48
Speaker 4: aiding and abetting this anti Semitic behavior there on campus.
13:52
Speaker 4: And you know, and I think Harvard's saying, hey, you're
13:55
Speaker 4: basically holding us hostage, which is in fact what that is.
14:00
Speaker 4: It is a you know, holding an institution hostage and
14:03
Speaker 4: unless they've been to the will of an administration and
14:07
Speaker 4: you know, and that's not.
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Speaker 3: Their right to do. But there was no process to
14:11
Speaker 3: it at all.
14:11
Speaker 4: Right, it was it was a swipe of the pen.
14:14
Speaker 4: It was a very sweeping action taken because what Harvard
14:18
Speaker 4: was being asked to do was to kind of fling
14:21
Speaker 4: open the books for a fishing expedition into the you know,
14:28
Speaker 4: acts and actions and behaviors and academic files of seven
14:32
Speaker 4: thousand international students without any kind of probable cause to
14:38
Speaker 4: do so. Right there was they were being asked. It
14:40
Speaker 4: was just such an overreach, such an overbroad request, and
14:45
Speaker 4: that is I think part of what Harvard was saying,
14:48
Speaker 4: you can't do this. You can't just shut this process
14:50
Speaker 4: down just because we wouldn't bend to the will of
14:53
Speaker 4: an inappropriate request in the first place. You know, with
14:57
Speaker 4: no due process whatsoever.
15:00
Speaker 2: Due process claims and claims of not following the Administrative
15:04
Speaker 2: Procedures Act seem to be frequent complaints against Trump administration actions.
15:11
Speaker 4: I think that's probably the most shocking part of what
15:14
Speaker 4: we're seeing here, is that these things are happening with
15:17
Speaker 4: a swipe of a pen instead of any kind of
15:22
Speaker 4: due process. That is is sort of foundational to who
15:25
Speaker 4: we are as a nation. Right, So we're going to
15:29
Speaker 4: with a swipe of the pen, we're going to you know,
15:32
Speaker 4: take away billions of dollars in research funding, no matter
15:36
Speaker 4: what it was for, right, no matter the importance or
15:40
Speaker 4: the value of it. We're going to threaten your tax
15:43
Speaker 4: exempt status without any without any process, you know, with
15:47
Speaker 4: without the even the notion that you lose tax exempt
15:52
Speaker 4: status for a very finite number of reasons after a
15:55
Speaker 4: very lengthy process. But that's been threatened, you know, taking
15:58
Speaker 4: away a civas registrations with no process whatsoever. Doing these
16:04
Speaker 4: things by a swipe of the pen is a really
16:09
Speaker 4: dangerous government overreach, and Harvard is an easy target. It's
16:15
Speaker 4: not something that the American public is likely to rally behind.
16:20
Speaker 4: It's not not something that everyone in America Harbor's great
16:26
Speaker 4: warm feelings. But the actions being taken here are dangerous
16:30
Speaker 4: because with no DO process whatsoever, if this can happen
16:36
Speaker 4: to Harvard, and this is what I think is so
16:38
Speaker 4: important for folks to remember, this can happen to three
16:43
Speaker 4: nine hundred non elite, non selective educational institutions that are
16:50
Speaker 4: doing really important work in communities across the country, I
16:53
Speaker 4: think that's what's important.
16:56
Speaker 2: So the blocking of the grants was the first thing
16:59
Speaker 2: I believe that Harvard took to court. But I don't
17:03
Speaker 2: think those grants have been restored.
17:06
Speaker 4: Not only have they not been unfrozen, but they've they
17:09
Speaker 4: you know, they've also been told not to apply for
17:12
Speaker 4: new grants. And so I think I used the term earlier.
17:17
Speaker 4: It is my opinion that we are in a hostage
17:20
Speaker 4: situation here and that amount of funding for really critical
17:24
Speaker 4: research in progress is creating a hostage situation where that
17:30
Speaker 4: amount of pressure, and you know, Harvard is doing everything
17:35
Speaker 4: in their power to backfill that with private, private funds
17:39
Speaker 4: but that is not going to last forever. Right, That's
17:42
Speaker 4: not a forever solution. That is a temporary solution to
17:46
Speaker 4: an existential problem. But those who are going to be
17:50
Speaker 4: affected by that, that's all of us, right, That's that
17:53
Speaker 4: is all of us. So yeah, no, those, to my knowledge,
17:56
Speaker 4: those have not been unfrozen.
17:59
Speaker 2: The Trump administration is moving to cancel all remaining federal
18:04
Speaker 2: contracts with Harvard, worth an estimated one hundred million dollars,
18:09
Speaker 2: and in a letter seen by Bloomberg News, Federal Acquisition
18:13
Speaker 2: Service Commissioner Josh Gruenbaum, in directing federal agencies, alleges that
18:19
Speaker 2: Harvard has continued to engage in race discrimination, including in
18:24
Speaker 2: its admissions process and in other areas of student life.
18:29
Speaker 2: And he referred to alleged discrimination at the Harvard Law
18:32
Speaker 2: Review and a federal task force did recently call out
18:36
Speaker 2: the Harvard Law Review's award of a sixty five thousand
18:39
Speaker 2: dollars fellowship to a protester who faced criminal charges for
18:43
Speaker 2: assaulting a Jewish student on campus. How does that all
18:48
Speaker 2: fit in?
18:49
Speaker 4: Well, I think you're asking, though, is there a way
18:52
Speaker 4: of canceling all contracts based on one that may have
18:57
Speaker 4: been inappropriate? Right, so again, and what these are are
19:02
Speaker 4: sweeping overreaches. So I think in the letters that Harvard
19:07
Speaker 4: has responded, they have often said, we can do better.
19:12
Speaker 4: We recognize we can do better, but to cancel everything
19:16
Speaker 4: based on one with a swipe of the pen, that
19:21
Speaker 4: is an overreach. And so it was the same way
19:25
Speaker 4: with admissions, and Harvard's response was, we can do better.
19:30
Speaker 4: Let us work. But this is a negotiating tactic. This
19:33
Speaker 4: is what we're seeing here. Is not a direct request
19:37
Speaker 4: to remedy a particular situation that may or may not
19:41
Speaker 4: be inappropriate. What it is is a negotiating tactic to
19:45
Speaker 4: try and accomplish the whole slate of requests that were sent.
19:49
Speaker 4: And it's just it's a way of increasing pressure on
19:53
Speaker 4: Harvard to bend to the will of an administration that
19:58
Speaker 4: wants certain things right, and so far Harvard has been
20:02
Speaker 4: unwilling to do that. So I consider this just one
20:05
Speaker 4: more negotiating tactic. Though it may have been an instance
20:08
Speaker 4: of you know, something that may in and of itself,
20:11
Speaker 4: when you cancel everything based on that, that's too much.
20:15
Speaker 4: You've gone too far.
20:16
Speaker 2: You mentioned the president wants to revoke the school's tax
20:20
Speaker 2: exempt status. Tell us about that and what kind of
20:25
Speaker 2: roadblocks it might face.
20:26
Speaker 4: So there is a there's a well worn path for
20:30
Speaker 4: revoking tax exempt status, beginning with a you know, an audit,
20:33
Speaker 4: an IRS audit of the whether or not the institution
20:38
Speaker 4: has retained its tax exempt purpose, has done its appropriate documentation.
20:43
Speaker 4: You know, it's done it, it's tax filings, it's not
20:46
Speaker 4: engaged in inappropriate actions, you know, political actions and other
20:52
Speaker 4: things like that, so inappropriate lobbying something, you know, those
20:56
Speaker 4: kind of things. But what has happened here is that
20:59
Speaker 4: the administration has just threatened to just revoke it, as
21:03
Speaker 4: if that is a thing that can be done, because
21:06
Speaker 4: they're indicating that Harvard's no longer serving its tax exempt purpose.
21:11
Speaker 4: But the Harvard's tax exempt purpose is education. And it's
21:15
Speaker 4: difficult to make the argument that that Harvard is no
21:18
Speaker 4: longer engaging in its tax exempt purpose education, you know,
21:22
Speaker 4: when it very clearly is. And so again, I think
21:26
Speaker 4: these mounting pressures are negotiating tactics. And you know, were
21:31
Speaker 4: it not for the fact that Harvard is well enough
21:34
Speaker 4: resourced to defend itself, they might be quite effective. And
21:37
Speaker 4: we've seen that other places. It concerns me for less
21:42
Speaker 4: resourced institutions that wouldn't be able to necessarily defend themselves.
21:46
Speaker 4: I mean, this is an extraordinary slate of a tax
21:50
Speaker 4: against a particular institution. And as I said, Harvard is
21:54
Speaker 4: you know, it's an easy target, not one that's going
21:56
Speaker 4: to elicit a load of public sympathy, but it should
22:01
Speaker 4: because of the risk to lots of other institutions that
22:04
Speaker 4: stand in the same stead. So, for example, the tax
22:08
Speaker 4: exempt status, if you can revoke Harvard's tax exempt status,
22:14
Speaker 4: which was granted to them for the purpose of education,
22:18
Speaker 4: then you could do that to a smaller private institution
22:21
Speaker 4: for not bending to the will or to the request
22:24
Speaker 4: of an administration. There would be no difference, right, So
22:27
Speaker 4: every private institution in the country holds a tax exempt
22:31
Speaker 4: status just like Harvard does. And if we can take theirs,
22:35
Speaker 4: then then that extends to those who are far less
22:39
Speaker 4: well resourced and less able to withstand those kinds of attax.
22:44
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
22:46
Speaker 2: this conversation with Jody Ferris and we'll talk about the
22:49
Speaker 2: concerns of other educational institutions. I'm June Grosso. When you're
22:54
Speaker 2: listening to Bloomberg, the future of nearly seven thousand and
23:00
Speaker 2: international students at Harvard University hangs in the balance this week,
23:05
Speaker 2: with a hearing set for Thursday to determine whether a
23:09
Speaker 2: temporary block should be extended. Last week, Judge Allison Burrows
23:14
Speaker 2: temporarily blocked Trump's move to bar Harvard University from enrolling
23:19
Speaker 2: foreign students.
23:20
Speaker 1: Part of the problem with Harvard is that they're about
23:23
Speaker 1: thirty one percent, almost thirty one percent of foreigners coming
23:27
Speaker 1: to Harvard. We have Americans that want to go there
23:30
Speaker 1: and to other places.
23:32
Speaker 2: The administration claims that Harvard failed to provide sufficient information
23:36
Speaker 2: about misconduct by foreign students, and is pushing for changes
23:41
Speaker 2: to the university's governance, admissions, and faculty hiring, as well
23:45
Speaker 2: as its handling of anti semitism on campus. I've been
23:49
Speaker 2: talking with Jody Ferris, a partner in the higher education
23:53
Speaker 2: practice at Church, Church, Hiddle and Antrim. So, Jody, have
23:57
Speaker 2: you gotten calls from any of you your education clients
24:02
Speaker 2: with concerns based on what's happened to Harvard?
24:05
Speaker 4: I do you know? I just got a call from
24:07
Speaker 4: a client last Friday who had watched with concern as
24:13
Speaker 4: Harvard's see this program was revoked their ability to enroll
24:17
Speaker 4: international students. And I have a client that has a
24:20
Speaker 4: similar sort of ratio. Harvard has about twenty seven percent
24:23
Speaker 4: international students, and I represent an institution that has a
24:27
Speaker 4: very significant number of international students. And you know, and
24:31
Speaker 4: they reached out just last week, and that's one example,
24:36
Speaker 4: and you know, their concern was what can we do
24:39
Speaker 4: kind of proactively? And my advice to them was stay
24:43
Speaker 4: out of the crosshairs. Honestly, you are not resourced as
24:49
Speaker 4: Harvard is. You don't have that kind of a financial
24:54
Speaker 4: depth to be able to withstand it. And you don't
24:56
Speaker 4: want to tell your clients to fade into the background.
24:59
Speaker 4: You know. I'm not attorney who normally would urge a client,
25:02
Speaker 4: you know, to fade into the background. But in this instance,
25:05
Speaker 4: the best thing that we can advise clients to do,
25:07
Speaker 4: I think, is to say, what's your processes, what's what's
25:11
Speaker 4: on your website, keep yourself out of focus, out of
25:15
Speaker 4: the gaze of the administration. Because most of the institutions
25:19
Speaker 4: that I represent could not withstand that kind of a
25:23
Speaker 4: of a challenge, you know, that the mounting pressure of
25:26
Speaker 4: you know, of a variety of attacks coming at them.
25:28
Speaker 4: So yes, I have clients who had international students whose
25:33
Speaker 4: student status was revoked. And that's that's the crazy part
25:37
Speaker 4: of this is it's an ongoing battle where these things
25:42
Speaker 4: go into effect and then you know, judicial resources are
25:46
Speaker 4: exercised and then we have an injunction reversing it and
25:50
Speaker 4: it gets stayed or you know, and what happens is
25:54
Speaker 4: is that in the meantime there are things that happen.
25:57
Speaker 4: So I had clients who had international students whose status
26:01
Speaker 4: got revoked, and before the injunctions even came, you know,
26:06
Speaker 4: stopping that and reversing it, before the administration reversed course
26:10
Speaker 4: on that, several of these students had already left the
26:14
Speaker 4: United States in April, you know, when their semester was
26:18
Speaker 4: done in May. And it's such a shame, right, It's
26:21
Speaker 4: really affecting institutions across the country who are watching the
26:26
Speaker 4: fight that Harvard's engaged in.
26:29
Speaker 2: So do you think there would be more sympathy from
26:31
Speaker 2: the public if the attack wasn't on elite institutions of
26:36
Speaker 2: higher learning?
26:38
Speaker 4: Yeah, I think and I've kind of said this already,
26:41
Speaker 4: but you know, I think that while Harvard might not
26:45
Speaker 4: engender a lot of sympathy across the United states, or
26:50
Speaker 4: or be a relatable institution in communities across this country.
26:54
Speaker 4: There are colleges that are fulfilling these same purposes, right, educating,
27:00
Speaker 4: becoming economic anchors of the communities, and they are impacted
27:06
Speaker 4: by these things, very much impacted by these things. I
27:09
Speaker 4: saw this morning. One of the latest things is, you know,
27:13
Speaker 4: if they're going to take away the funding, they're going
27:15
Speaker 4: to redirect it to trade schools. And that's fine. But
27:19
Speaker 4: what you know, trade schools are fine. But what we
27:22
Speaker 4: need to recognize is that this is a yes and right.
27:25
Speaker 4: Private higher education is important. Public higher education is important.
27:29
Speaker 4: Trade schools are important, but we shouldn't be held hostage
27:33
Speaker 4: to an administration that wants institutions to bend to their
27:37
Speaker 4: will or else. Right, if these actions are appropriate, then
27:42
Speaker 4: then they would be appropriate. Not because you want to
27:45
Speaker 4: hold an institution hostage or force it to bend to
27:49
Speaker 4: your will. It shouldn't be tied like that. And so
27:53
Speaker 4: what I guess, what I just always want to end
27:55
Speaker 4: with whenever I'm doing an interview is just an urging
27:59
Speaker 4: of folks to remember that as goes Harvard, or as
28:03
Speaker 4: goes elite, IVY League or IVY plus institutions, still goes
28:08
Speaker 4: thirty nine hundred other colleges and universities across the United
28:12
Speaker 4: States who are and will continue to be impacted by
28:16
Speaker 4: the very same actions that are happening in the upper
28:20
Speaker 4: echelons of higher education. So it's far more important, I
28:24
Speaker 4: think than maybe the average American citizens realizes, because the
28:28
Speaker 4: implications are really staggering for what this could mean. The
28:31
Speaker 4: other thing that I would would say is about the
28:34
Speaker 4: international students. I want folks to realize that the world
28:38
Speaker 4: is watching. The world is watching, and while the administration
28:44
Speaker 4: may have recently indicated that they're not sure, we really
28:47
Speaker 4: are receiving the best and brightest from the world. We
28:50
Speaker 4: are and we have been. During the first Trump administration,
28:53
Speaker 4: we saw a market downturn in international students coming here.
28:58
Speaker 4: They many of them redirect to Canada or to Australia.
29:03
Speaker 4: And I personally had students back then whose parents and
29:07
Speaker 4: grandparents urged them not to come back to the United States.
29:11
Speaker 4: So I worry that on the international student front, we
29:15
Speaker 4: will feel the effects of these decisions for generations, no
29:19
Speaker 4: matter how that all turns out. Now, we've already sent
29:23
Speaker 4: a message right to the world that we're not sure,
29:27
Speaker 4: We're real interested in having international students here, and we
29:30
Speaker 4: don't recognize the contributions that they've made and continued to make,
29:34
Speaker 4: not just to our economy, but really to science, to
29:40
Speaker 4: our industries of all kinds across this country. And I
29:45
Speaker 4: worry very much about the message that we've sent to
29:47
Speaker 4: the rest of the world.
29:48
Speaker 2: There have any of these investigations so far come up
29:52
Speaker 2: with hard proof in numbers. Perhaps, I know, the EEOC
29:58
Speaker 2: launched an investigation into Harvard's hiring and whether it unlawfully
30:03
Speaker 2: hires faculty based on race and sex.
30:08
Speaker 4: In the Commissioner's Charge about you know, where they indicated
30:12
Speaker 4: that the EEOC was going to investigate because Harvard has
30:17
Speaker 4: obviously been engaged in discriminatory hiring practices. So the Commissioner's
30:24
Speaker 4: Charge shows all of this data right that Harvard had
30:28
Speaker 4: put on a public dashboard and in its twenty twenty
30:31
Speaker 4: four annual report, and Harvard's, like lots of institutions, like
30:35
Speaker 4: my own clients in the past, have had, you know,
30:38
Speaker 4: an annual report, and they show faculty demographics and development
30:42
Speaker 4: and diversity and who you know got tenure and different things.
30:45
Speaker 4: And so in Harvard's twenty four annual report, twenty twenty
30:49
Speaker 4: four annual report. They showed the demographics, and in this
30:53
Speaker 4: EEOC charge, it says, based on Harvard's twenty twenty four
30:58
Speaker 4: Annual Report on Fact Development into Diversity, there is reason
31:04
Speaker 4: to believe these trends show an underlying pattern or practice
31:08
Speaker 4: of discrimination based on race. So what they're actually saying, right,
31:12
Speaker 4: that is the leap it makes here is the data,
31:16
Speaker 4: and based on that report, there is reason to believe
31:19
Speaker 4: that Harvard has engaged in a practice of discrimination. But
31:22
Speaker 4: what you're saying, if you just look at the data
31:25
Speaker 4: and then you say, without more, there's reason to believe
31:29
Speaker 4: that you've engaged in inappropriate hiring, is that you don't
31:33
Speaker 4: believe there were that many minorities who were qualified to
31:37
Speaker 4: work there, And that is discriminatory thinking, right. So it's
31:43
Speaker 4: strange to me how that is someone considers that an
31:48
Speaker 4: appropriate basis upon which to launch an EEOC investigation. Because
31:53
Speaker 4: I did my doctoral research on this very thing, and
31:57
Speaker 4: I can give you thirty seven other reasons why Harvard
31:59
Speaker 4: may have, you know, an increase in diversity among their faculty,
32:03
Speaker 4: and I can give you lots of reasons why it's
32:05
Speaker 4: important to do so. But they've made the leap an
32:08
Speaker 4: assumption that if you increase the rate of faculty diversity,
32:12
Speaker 4: you've probably engaged into discrimination against white, straight folks men,
32:21
Speaker 4: because otherwise you wouldn't have this data, you wouldn't have
32:23
Speaker 4: this kind of diversity. But that that itself is discriminatory,
32:28
Speaker 4: and so that that is just a point that I'd
32:31
Speaker 4: really like to make, is that that particular EEOC investigation
32:34
Speaker 4: to me, seems like it's very logic. It's based on
32:38
Speaker 4: discriminatory logic in the first place.
32:41
Speaker 2: We'll have to follow this and see if anything comes
32:44
Speaker 2: of this EEOC investigation. Thanks so much, Jody. That's Jody
32:48
Speaker 2: Feris of Church, Church, Hittle and Antrum. And that's it
32:53
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
32:55
Speaker 2: can always get the latest legal news on our Bloomberg
32:58
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33:02
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Speaker 2: and remember to tune into The Bloomberg Law Show every
33:10
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
33:14
Speaker 2: and you're listening to Bloomberg