Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned, I’m Preet Bharara.

Lee Bollinger:

What the United States did in that post World War II period was the equivalent of a Marshall Plan for white Americans. And when that carries on over generations, you have profound effects of lasting discrimination.

Preet Bharara:

That’s Lee Bollinger, he’s the President of Columbia University, a position he’s held since 2002. That makes him the longest serving Ivy League President. And over the years, Bollinger has become one of higher education’s most prominent and outspoken leaders. He’s also a law professor in one of the nation’s foremost experts on the First Amendment. But Bollinger is perhaps best known for an unusual reason. He was the named defendant in two landmark affirmative action cases. Both were decided by the Supreme Court in 2003. And they’ve both been the law of the land ever since, but they in trouble now. Bollinger joins me today as the court weighs overturning the precedent that bear his name. And in the process, banning the consideration of race altogether in college admissions. There’s a lot to talk about with President Bollinger. So our discussion will air over the course of two episodes. Part one is dedicated to affirmative action and part two we’ll focus on the state of higher education in America. Part one with Lee Bollinger is coming up, Stay Tuned.

QUESTION & ANSWER:

Preet Bharara:

Hey folks, some of you may have heard the news that my new children’s book is now out. It’s called, “Justice Is…”. The book is a kind of guide for young truth seekers. It cases trailblazers throughout history from, Frederick Douglas, and Ida B. Wells, to Malala Yousafzai, and John Lewis. And it’s illustrated by, Sue Cornelison, who brings them to life on every page. I’m donating all my proceeds from the book to the New York Legal Assistance Group, a leading civil legal services organization that advocates for people experiencing poverty or who are in crisis. Head to justiceisbook.com to buy your copy of, “Justice is…”, for the budding leaders of tomorrow.

Preet Bharara:

Now let’s get to your questions. This question comes from Twitter user Tracy, who says, it’s been nine plus months since Rudy was raided. Does that suggest they found nothing? First of all, there are some people who quibbled with the term rated. I think law enforcement professionals would prefer to say, when a search warrant was executed. And as you may recall, a number of search warrants were executed at Rudy Giuliani’s residents, and very notably, 18 electronic devices were seized. And information was sought from all 18 of those devices. Now, ordinarily, when a long while goes by, it might suggest after a search warrant is executed, that not much was found. First of all, nine months is not that long in a complicated case with a lot of devices. You may recall that one of the things being investigated apparently is whether, Rudy Giuliani, had appropriate contact with, and whether he lobbied for Ukrainian officials. Was he in fact, an illegal unregistered agent?

Preet Bharara:

That’s one of the things that my former office, the Southern District of New York US Attorney’s Office is looking at. The other reason why I think the nine month gap doesn’t really signify much and it’s not too much of a delay is because there’s a wrinkle in the Giuliani case. And the wrinkle arises from the fact that, Giuliani, no matter the fact that he’s been suspended in two jurisdictions with respect to his law license and he’s come under fire for the way he’s represented Donald Trump and others, at the time of this conduct, he was an active lawyer and the issue of attorney-client communication is a real one. And I think my former office has learned from experience that rather than suggest that people within the office, form a screen team or a taint team, or some other term that you might use to describe it, to internally decide on their own, which documents cannot be produced because they’re protected by the attorney-client privilege and which documents are not covered.

Preet Bharara:

They opted, in this case, for something that ended up happening in prior cases, which was the appointment of a special master. So someone outside of the government, someone who was not connected to the government or to the target, in this case, Rudy Giuliani, who would make an assessment of thousands and thousands of documents and make a determination as to which documents get turned over and which aren’t. And that special master, in this case, was former federal district court judge in the Southern District, Barbara Jones, who is very careful, who is very smart. I’ve known her for a long time and appeared in front of her. And she only completed what was, of course, a complex review on January 21st of this year. So just a few weeks ago. So it’s only the last couple of that lots and lots of documents have come into the possession of prosecutors and agents in the Southern District of New York.

Preet Bharara:

So we may yet see action, we may yet see a prosecution, it’s not guaranteed, but it is a very, very significant step. I think about what I would do in that position, if I was still in office, it’s a very significant step to authorize search warrants on the former US Attorney of the Southern District of New York. And more importantly, the then attorney to the sitting president of the United States or the former president of the United States by the time they issued the search warrant, although they sought it while he was still sitting in the Office of the Presidency. That’s a significant thing to do, unless you think you have a very substantial likelihood of being able to bring a charge. So Stay Tuned.

Preet Bharara:

This question comes in an email from, Jim, who writes, hi, Preet, I had a question about Trump’s recent statements that he would pardon the January 6th insurrection criminals if he’s elected in 2024. I’ve seen several pundits characterize this as witness tampering. If Trump hasn’t been accused of a crime, how could this be witness tampering? Does the statute apply if he’s being investigated? Can it be applied retroactively if he’s accused later. I’m very confused about it. So thanks for your question, Jim. It’s a pretty extraordinary and terrible thing that Donald Trump has said about the insurrectionists, people who engaged in violence, who were not engaged in legitimate political discourse, who beat and injured scores of cops, multiple people died. And for the President of the United States, when he was president on January 6th to say he loves them and seemed to revel in the activity they were engaging in, the violent insurrection. And then later, more recently, to say that he’s thinking about pardoning them, I think is unconscionable. Here’s what he said specifically last Saturday.

Donald Trump:

If I run and if I win, we will treat those people from January 6th fairly. We will treat them fairly. And if it requires pardons, we will give them pardons because they are being treated so unfairly.

Preet Bharara:

That’s an abomination what Donald Trump said, given what these people did and given the fair and open prosecutions that are taking place with respect to some 700 and more of these individuals and probably more down the pike. Whether or not that bear generalized speculative statement as a private citizen, coming from Donald Trump, qualifies as witness tampering, I’m pretty dubious about that. I think you need more evidence. I think you need more about his intent. He’s not specifying precisely who would be given a pardon. He’s not promising there’s going to be a pardon. There’s a conditional there. And many other speculative things have to happen for him to even make good on the pledge. He’s got to run for office, which I think he might, but maybe he won’t. He’s got to win reelection and then he’s got to stick to his pledge. And another thing about whether or not his comments might affect the conduct of these insurrectionists, I think very, very few of them are in a position to provide damning testimony all the way up to President Donald Trump himself.

Preet Bharara:

That takes a little bit away from the issue of the intent of what he said. And the argument could be made on behalf of the Trump folks, that he was just making a political speech and trying to rile up his base and show sympathy for these folks, whether or not he actually ever intended to pardon anyone. And the other thing is the passage of time. Even if Donald Trump were hell bent on pardoning people, and even if he decided to run and he did run and he got elected and it was a fair election, he’s at least three years away, permissioning, a pardon to anyone. And many, many, many of these insurrectionists are getting prison sentences that would not be that long.

Preet Bharara:

And so whether it would affect their decision making on proceeding or getting sentenced after trial, if they get convicted, and then hypothetically getting pardoned sometime in the future. I’m not sure how much that weighs on them, although it is true, as Joyce and I discussed on the CAFE Insider Podcast this week. There’s a lawyer for one or more of the insurrectionists who said it may make an impact. I just don’t think whether you like it or not, we’re at the point where his broad statement at a political rally constitutes witness tampering under the precise federal statute.

Preet Bharara:

Speaking of pardons, we got another question about pardons. This one comes in a tweet from Twitter user CB. Hi, CB. That’s C-E-A-B-E-E, as in B and the C, I presume. The question is, do you agree that Trump should be pardoned? So that’s a question that I’m not sure is really on the table as a practical matter. And I think Biden has suggested that he would not. And I don’t know that anybody’s actively thinking about this or is in a position to influence Biden’s decision making. The reason it seems to be in the news a little bit is there’s a relatively old video, a former FBI director, Jim Comey, from about a year ago, January 13th, 2021.

Question:

Do you think Joe Biden should pardon Trump as Ford did Nixon?

Jim Comey:

I don’t know. He should consider it as part of healing the country and getting us to a place where we can focus on things that are going to matter over the next four years. I think Joe Biden’s going to have to at least think about that.

Preet Bharara:

It’s been making the rounds again because someone was reminded of it and posted it. So I guess in some fashion, this debate continues and people are pointing out. Another thing that Jim Comey said in his book, “Saving Justice”, he wrote, “The next US Attorney General under Joe Biden should not pursue a criminal investigation of Donald Trump. Although, those cases might be righteous in a vacuum, the mission of the next Attorney General must be fostering the trust of the American people.” And he talks about healing and moving on. I respect, Jim Comey. I used to work with Jim Comey. He’s done some controversial things in more recent years, but I respect his good faith and I also respectfully disagree with him and others who say that with respect to Donald Trump, we should move on. One reason maybe people make the point about thinking of pardoning Donald Trump preemptively, by the way, he hasn’t been charged with anything. So there’s no specific thing of which to pardon him.

Preet Bharara:

One might say that at a minimum, you see what kinds of charges are brought, if any, and then you take into consideration the significance of the prosecution and whether you really believe in the principle that no one is above the law and make the decision then. A preemptive pardon, I think, is patently absurd because we don’t know what he did. And I think we need to get some transparency about that. Some people make the point because they look back at history and they say, well, Gerald Ford made the very difficult decision to preemptively pardon, Richard Nixon. Fair enough, that was a tough decision. I’m not sure what I would’ve done. I’m glad the decision wasn’t up to me and I’m sure you may feel the same. But those situations are dramatically, profoundly different.

Preet Bharara:

When Nixon’s bad conduct was exposed and when impeachment proceedings began with expected Richard Nixon, what did he do? He expressed remorse. He expressed shame. And most importantly, he resigned from office. There’s a scene in the American Pantheon of historic scenes in which, Richard Nixon, leaves the Oval Office, gets on a helicopter, waves goodbye and flies away. He showed remorse and he left the political scene with no hope of coming back, partly because he was a second term president, and partly because he made clear he was done with politics. In that situation to say pardoning a former president to heal the nation made some amount of sense, although it was still controversial at the time. Many, many people think that, that’s why Ford lost his bid for election in his own right for the presidency of the United States and Jimmy Carter won.

Preet Bharara:

By contrast, Trump has done nothing to accept responsibility. He says everything he did was perfect. He says everything he did was right. He said, anybody looking at him or making allegations about him is engaged in a witch hunt. He scapegoats other people. We don’t have the extent of all of his conduct. And has he left the political scene? No. He insists he won the last election. He insists he might run again and he might become president again. That’s not a person you pardon no matter what you think about healing the nation. And I don’t think you can heal the nation in circumstances in which no responsibility was accepted. And in circumstances in which we don’t know the full scope of the misconduct and the bad conduct by Donald Trump. So my vote, no pardon under any circumstances for Donald Trump.

Preet Bharara:

Stay Tuned, there’s more coming up after this. Hey folks, we have a job opening at CAFE. It’s a dual role. We’re looking for a law and politics nerd to be an assistant for me and an operation’s coordinator for CAFE. The job is based in New York. To learn more and to apply, head to cafe.com/jobs. That’s cafe.com/jobs. My guest this week is, Lee Bollinger. He’s a longtime proponent of affirmative action in higher education, first as President of the University of Michigan, and later, as President of Columbia University.

THE INTERVIEW:

Preet Bharara:

Lee Bollinger, welcome to the show. Thanks for taking the time.

Lee Bollinger:

Thank you very much for having me.

Preet Bharara:

So my first question is, how does one become a university president, because I would like to apply? I hear it’s a demanding job. There’s a lot of multitasking, I presume, but how does that happen?

Lee Bollinger:

Well, it’s a good question. I think it’s one of the best jobs in the world. Obviously, I’ve been doing it for a long time now, some 20 years at Columbia and four years before that at the University of Michigan. So clearly, I think it’s a unique and really wonderful position. It’s also something that’s incredibly difficult. And I think almost everybody would agree with that for lots of reasons we can talk about if you want. But how do you become one? I think you don’t set out in life to be become one. I set out to be a great scholar, a great teacher. And then in the course of doing that, I was at the University of Michigan Law School. It became possible to be Dean and I hadn’t planned on that. But the faculty seemed to think that was a good idea. And of course, faculty played this pivotal role in that.

Lee Bollinger:

And once I became Dean, I realized that I liked it. It called on talents and skills and things that I had, or didn’t have, I thought that I’d like to have. And after doing that for six, seven years, I decided I really would like to do this at a university scale. And that’s how it happens. So university presidents are drawn almost exclusively from within the academic community and among the professoriate. That’s how it happens. I don’t think anybody really sets out to be a university president.

Preet Bharara:

And so you fall into it, a little bit?

Lee Bollinger:

Yeah.

Preet Bharara:

How much does it insult you, if at all, when people refer to universities as the Ivory Tower?

Lee Bollinger:

Not much. I think that’s a very ambiguous term. I think in some sense, faculty think that’s an important value. I mean, we’re somewhat separate from the rest of the world. That’s for very good reasons. You want to be able to think largely about things that are long-term or outside of what mainstream concerns are. And so being somewhat removed from the world is actually a very desirable thing. I happen to think that, that’s gone too far and we can talk about that if you want. And because I think universities can play a much more positive, active role in the world than they do today. But of course, underlying that ivory tower term is often a dismissive or a charge of being privileged, as well as disconnected. And I think one has to be honest about these kinds of charges and criticisms and face up to them. And I’m happy to do that. But I think that people on the whole are very respectful of universities. Clearly, there are things to criticize, but on the whole, I think universities, certainly, in the United States are generally highly respected.

Preet Bharara:

I think that’s right, although there have been some high profile criticisms, some of which I want to get into. And on the show, we’ve talked about various things, including how selective universities are, how large their endowments are. Do they need to be that large? I’m going to ask you about what my own philosophy professor at Harvard talks about, Michael Sandel, the over valorizing of college. But before we do, all that’s good stuff. One reason that we wanted to have you on was because there’s some legal cases in the news that you have, I guess, it’s fair to say a personal investment in, and I’ll explain. The Supreme Court has agreed to hear in the next term, two of affirmative action cases involving universities.

Preet Bharara:

One, Students for Fair Admissions versus Harvard, and the other, Students for Fair Admissions versus UNC. And one of the reasons that’s relevant in your world is not just because you have the leadership job at Columbia University. And there are race-based considerations with respect to applicants coming to that school. But you yourself, sir, are the named defendant in two very important, fairly long standing Supreme Court cases. One named, Grutter v. Bollinger, the other, Gratz v. Bollinger from 2003, arising out of your time as a president of the University of Michigan. That’s a long introduction. First question to you, just as a personal matter, what did it feel like being a named defendant in the Supreme Court opinion?

Lee Bollinger:

Well, I mean, you and I both share a background in the law and so on, but you have been an active lawyer and I’ve been an active defendant. And so you know that there’s a classic phrase of Learned Hand, something to the effect of the worst thing that can happen to you in life is to be a defendant in a lawsuit.

Preet Bharara:

I have been a defendant in a lawsuit more than one.

Lee Bollinger:

Yes. I’m sure that’s right.

Preet Bharara:

As you might imagine.

Lee Bollinger:

I’m sure that’s right. So when you have your name on a case, I mean, there were clearly other people named, the university was named. I happened to be named as the plaintiffs separated out individuals starting with me. And I think it really goes to your identity in a very deep way at least if you are somebody who is steeped in law, trained in law, went to law school. When I went to law school, which was in the late 60s and I’m a constitutional law scholar. When the issue is not only your name, but the question whether the constitution has been violated. I mean, I felt a very, very personal connection to how that case came out. Of course, I was primarily representing leading the litigation for the University of Michigan, and to some extent, for higher education, very much for higher education. And I felt much more of a powerful set of responsibilities, but there’s no question that having my name on the case mattered.

Preet Bharara:

Let’s talk about what the case was, because in fact, what is at issue in the current Supreme Court docket is the request by this plaintiff, this petitioner, to overturn Grutter. And the Grutter case involved, as I’m sure you very well remember, a white Michigan resident, a woman, who applied for admission to the University of Michigan Law School. She had a 3.8 undergraduate GPA, an LSAT score of 161. Those are very good scores. She was denied admission and the Law School took the position that was fairly well founded in the law that you could take race into account if it serves a compelling interest that’s narrowly tailored, if the means are narrowly tailored. And that compelling interest was diversity in the student body. How did that case turn out?

Lee Bollinger:

So we won by a vote of five to four, but a majority of the court, Supreme Court, for the first time in history found that considerations of race in public universities and higher education was a legitimate thing to do under the 14th Amendment for purposes of building a diverse student body. And so it was a great victory. And we can talk about the roots of this issue, affirmative action in universities, the Bakke decision and so on. But this case Grutter, with my name on it was the first time that a majority of the Supreme Court actually decided that this practice of universities, broadly across the United States was constitutional. That was the holding. And as you point out, the Supreme Court has now taken two cases, in many ways, quite similar, one from Harvard, one from the University of North Carolina. And one of the questions posed, a major one is whether to change, modify, or overrule the Grutter decision that I was involved in.

Preet Bharara:

Do you get the sense that this current Supreme Court is in an overruling state of mind generally?

Lee Bollinger:

Yeah. Right. Well, I think that we are in the process of learning the answer to that. So we have a case involving Roe versus Wade that is coming before the Supreme Court. I mean, it’ll be decided probably in June. There are major concerns that the majority of the court will start to overturn Roe. There are a number of other areas of the law where there have been overturning the prior precedence. So I think it’s too early to say that this court will be uniquely inclined to overturn precedence. Certainly, the war in court, going back to the 1950s, 60s, 70s, overturned many, several major earlier decisions, either implicitly or explicitly. Whether this court will do that in a much greater degree and overturn many of the decisions of the Warren Court, again, I don’t know yet. I’m concerned. Honestly, I’m concerned about Roe versus Wade and I’m concerned about the Grutter decision.

Preet Bharara:

Do you think it’s fair to say that if Roe V. Wade goes by to by, that it’s all over for the case that has your name on it, or they’re not as linked as I’m making out?

Lee Bollinger:

I don’t think they’re linked except in the spirit of being willing to overturn major precedence. But it could cut both ways as we like to say in the law, overturn one major decision. And Roe may be less inclined even though you would like to do it in the Grutter case and vice versa. So not clear to me how that plays out.

Preet Bharara:

Right. And it’s sort of interesting that you maybe you don’t want to do it four times.

Lee Bollinger:

Right.

Preet Bharara:

In the course of one Supreme Court term and particularly on, I guess, what people call hot button issues.

Lee Bollinger:

Yes. And there’s some theory here that the Harvard case and joining it with the UNC case and waiting to do it and putting it into the next term, beginning next October, was a way of not overturning two decisions, major decisions in the same year.

Preet Bharara:

I wonder if that’s a harbinger of something. Could you explain for folks how you articulate the right way to think about race in admissions to university? And try to address to folks who say it shouldn’t play a role that everything should be color blind, whatever that means exactly. Just the print, it doesn’t have to be the court articulated version, but your university president version of it.

Lee Bollinger:

Right. Good question. I think one has to start by understanding that university admissions, and let me just focus on undergraduates and the same can be said about medical schools or law schools, but let’s just focus on undergraduates. Take many things into account. If you talk to any admissions officer of any selective university, you’d be really impressed by the complexity of the choices that are made about who, to admit. I mean, there’s a standard view, that standard test scores and grade point averages are the decisive elements. And to some extent, of course, they are the dominant element, but there are so many things that are taken into account. And we know many of them, I mean, we articulate many of them. So we know that there is efforts to try to get people from different parts of the United States.

Lee Bollinger:

At the time that I was admitted to Columbia Law School, I was at the University of Oregon. I spent my teenage years, my family moved to Oregon. I am sure that the admission’s people took into account that I was from a state where they had very people. And so geographic distribution, you try to get people from different backgrounds of travel or life experiences, you take into account athletic abilities, or creating new businesses or just all kinds of things, including legacies, have your parents, family gone to the university? And we know that, that’s quite controversial. But there are many things that we take into account. So you have to start from that. I think, secondly, you have to recognize that the United States has a history of extraordinary invidious discrimination against African Americans.

Lee Bollinger:

And when I first learned, when I became President of Michigan in ’97, that we were about to be sued by the groups opposing affirmative action, I knew right away because of my constitutional law background, that it wouldn’t make a lot of sense to talk about Bakke and Justice Powell’s decision in Bakke. It’s really Brown versus Board of Education you have to go back to. And we know that Brown set in motion, a massive change in American society of trying to overcome slavery, the Jim Crow laws, deep, deep discrimination. And we also know that it was only partially successful and that discrimination continues to this day. In the early 70s to mid 70s, all universities across the United States concluded that we needed to do something in order to try to help overcome this history, this legacy, terrible legacy of discrimination.

Lee Bollinger:

And that’s when considering race as one factor in admissions to try to get a diverse student body and to bring different groups together, whites and blacks and others, together in a university setting, and to give opportunities for African Americans to have a shot in American life, to integrate the communities of law, business, of culture, all across the country, we needed to do our part. And that’s when affirmative action really began. It’s something that every major university does, has that. And I think with great success in contributing to the integration.

Lee Bollinger:

So there are two key elements of this. One is, we need to learn how to live together, think together, overcome our stereotypes, our prejudices, our expectations. And it’s really good for an educational setting to have people from diverse backgrounds. That’s the primary reason that’s given. But the other reason, and I think it’s even more powerful is that the society has, I think, nobly taken on the commitment to try to overcome the legacies of invidious discrimination. And we are not done with that. And we need to keep the university system open to play in its role to helping us reach a more just society. So those are the arguments, I think.

Preet Bharara:

What’s interesting about what you say, because I was going to get to this distinction between two principles. I don’t know if they overlap. Sounds like you think that they do. I don’t know they conflict in any way. But the principle of remediation, this horrible, wrong, that was perpetrated on a particular group of people in this country, which, if that’s the purpose, benefits individuals in that group. Versus diversity, which is a value that benefits, presumably, everyone. It benefits the white students. It benefits the Asian students. It benefits the black. It benefits all people. And it sounds like you rank the importance of remediation as a general matter above diversity. And yet, it looks like the legal cases are all about diversity and not about remediation. Why is that?

Lee Bollinger:

So this is a very astute question, Preet. And I-

Preet Bharara:

Thank you. I’m going to put that in my application to be university president.

Lee Bollinger:

It is precisely. I mean, we’ll talk about, probably, the books that Geoff Stone, who’s a very well known famous law professor at the University of Chicago Law School. And he and I have done now several books together. We are doing a book together on affirmative action. And the argument we are making is that there has been a mistake in the Supreme Court cases, beginning with Powell’s opinion and Bakke, which I’ll explain in very short terms. In emphasizing only the benefits of diversity for general education for all groups and that the problem of past and ongoing discrimination, really must be overcome as a matter of justice, is a more powerful one. So what happened? Well, I think all universities that began this in the 1970s were acutely aware of how much discrimination there continued to be and the need for some kind of interventions to help the society overcome this, as well as the benefits of educational diversity as you put it.

Lee Bollinger:

And when the Supreme Court looked at this problem, is affirmative action taking race into account? Constitutional, there was not a majority. It was called the Bakke case, late 70s, early 80s. And Justice Powell wrote an opinion in which he said, you cannot take race into account as a constitutional matter for a remedy for past discrimination, but you can for the benefits, the educational benefits of diversity. And that distinction, which you articulated, which disfavor the first and favored the second, really marked higher education to this day. So that every person who becomes a dean or a president or academic leader is told by General Counsel, never, ever say that we are taking into account race because of the discrimination in the society that remains and must be overcome. If you say that, under the Powell decision, our policy will be declared unconstitutional.

Preet Bharara:

Didn’t you just say, words to that effect on this podcast?

Lee Bollinger:

Yes. I believe strongly —

Preet Bharara:

I know your General Counsel. She was a colleague of mine at the Southern District of New York for a number of years, is she going to holler you when this comes out?

Lee Bollinger:

No, she won’t because she understands that academic freedom includes the right of precedence.

Preet Bharara:

To talk on podcasts.

Lee Bollinger:

To talk on podcasts and to discuss constitutional theories and cases. So what we have is, I think of as a somewhat vague and empty discussion among universities about why it is important to do this. And it’s just very hard for academic leaders, and dangerous for them to go out and say, we need to do this because we still have a serious discrimination in the society. And we have generations of unfairness that needs to be overcome. So in the Grutter case, again, going back to that, a majority of the Supreme Court took the Powell approach and basically emphasized the educational benefits of diversity, which I don’t want to, in any sense, diminish because I believe in that too.

Lee Bollinger:

But it seems to me that a mature society that really is committed to justice and understands the history of Supreme Court decisions beginning with Brown, especially, there should be a great deal of, not just latitude, but praise for institutions of higher education that try to help the society overcome these problems. That is the argument. I’ve made it in a number of contexts, but we will also make it in the course of this book.

Preet Bharara:

As part of the point that the legal strategy that was developed by lawyers trying to defend, taking into account race, and also possibly in the mind of Justice Powell, was an assessment that it’s more palatable to talk about diversity than to talk about remediation. People don’t like to talk about that, they say it’s too difficult. How do you target? What about socio economic issues? And what about people who didn’t suffer under the scourge of slavery? Different kinds of discrimination, people don’t like to talk about reparations often. Was it a strategic decision or a principled one?

Lee Bollinger:

Good question. I think all of those are very plausible. I mean, my sense is that Justice Powell was a person who would prefer not to see a constant recognition among institutions of higher education, that there was a continuation of really deep, deep discrimination. We know today the schools in many cities across the country are as segregated or more segregated than they were at the time of Brown. So in the 1950s and 60s. I mean, there are different reasons, but the fact of segregation continues. We also know things like in the discrimination that followed World War II in this country towards African Americans as great important projects, like the G.I. Bill, Mortgage Aid, helping people buy homes, developing various types of social security benefits, really left out to African Americans. I mean, literally denied them access to those benefits.

Lee Bollinger:

And those were, as one of my colleagues has put it in a book called, “When Affirmative Action Was White”. It’s Ira Katznelson, distinguished political scientist, historian, and colleague here. What the United States did in that post World War II period was the equivalent of a Marshall Plan for white Americans. And when that carries on over generations, you have profound effects of lasting discrimination. So in some sense, I think you can’t deny it, you shouldn’t deny it, but I think the other view is we can accomplish the same things, the same ends without having to recognize that it’s an ongoing problem. It’s divisive to recognize it, we should move on. Maybe it’s not as great now as it was. Maybe people may even believe it’s ended. But I think there’s a lot of wish for denial that is behind that theory.

Preet Bharara:

We’ll be right back with more of my conversation with Lee Bollinger after this. Further, to all of this, there’s a famous line from the Grutter case that we’ve been talking about, written by Justice Sandra Day O’Connor. And I wonder what you make of this, and I wonder what you think she’s really talking about. She said, quote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” And that decided by the petitioners in the current cases. 25 years, past 2003, would put us at 2028.

Lee Bollinger:

Right.

Preet Bharara:

And it’s now 2022. Was O’Connor just talking about diversity or was she also talking about the issues that you’re mentioning, the legacy of discrimination?

Lee Bollinger:

Yeah. Again, an astute reading of the case. Yes, I think what that reveals to me is that the majority of the court and Sandra Day O’Connor wrote the majority opinion as you noted, they know that this is desirable necessary demand of justice, that we open up institutions or allow them to open up themselves to trying to give opportunities to African Americans given what they have been subjected to and continue to be. And that, that is an expression of implicitly. We know that that has happened and is happening. And we hope in two decades, two and a half decades, that that will no longer be the case. So I think it’s a recognition of what it is I’m saying is the primary theory that we should explicitly acknowledge. But I think it’s a kind of unfortunately wishful thinking. Because if we’ve learned anything in the last few years, it is that this is not a 25 year problem. This is multiple generations. And my worry is that some people and some justices may take that 25 year marker as of some kind of independent constitutional significance and not something linked to reality.

Preet Bharara:

Based on the clairvoyant powers of a justice.

Lee Bollinger:

Yeah.

Preet Bharara:

I mean, she did not say we hope.

Lee Bollinger:

Right.

Preet Bharara:

It’s interesting. She said, we expect the 25 years from now. And it reminds people, me, and I’m sure you, of a parallel such with respect to the Voting Rights Act and pre-clearance of changes in voting laws in states. And there seems to be impatience on the part of some people, maybe in good faith, often, possibly in bad faith, that they will accept certain kinds of policies pre-clearance in voting law cases, affirmative action type programs at universities, so long is its temporary. And the petitioners, by the way, in the current cases that’ll be heard by the Supreme Court, as we’ve discussed, say there has to be some endpoint. Do you agree with the principle? And maybe it’s 100 years, maybe it’s 200 years, maybe it’s another 25 years. But do you agree with the principle that there has to be an endpoint or not?

Lee Bollinger:

No. I think the principle is that as long as the society is infected with this problem, it should be constitutional to try to address it. It’s the underlying reality, it’s not just an abstract endpoint.

Preet Bharara:

What’s so compelling about diversity?

Lee Bollinger:

Compelling in a-

Preet Bharara:

Well, why is that a compelling interest?

Lee Bollinger:

You mean under the 14th Amendment?

Preet Bharara:

Yeah. But again, these questions I hope you’d answer, not just as a legal scholar, but also as a university professor.

Lee Bollinger:

Yeah.

Preet Bharara:

Why is that important to your campus?

Lee Bollinger:

Okay. So now moving away from the justice, let’s say, element of this to, what constitutes the good education and to what extent having people of different races and graphical backgrounds and other human backgrounds brought together in an academic community, to what extent does that benefit teaching and research? And I mean, I think, this is one of those grand questions on which one can… It’s like you stake your life on it.

Preet Bharara:

I was asked the other day to answer briefly the question of, what is justice?

Lee Bollinger:

Yeah.

Preet Bharara:

Many lifetimes of many Greeks and others were sacrificed to these questions.

Lee Bollinger:

Yeah. I would stake my life on living in a world in which I am constantly interacting with a lot of people who are quite different from me. There’s such a strong human impulse. And when we talk about free speech, this is something that I think is foundational there, too. There is such a strong impulse in human nature to isolate yourself, to surround yourself with people who believe like you do, think like you do even look like you do. And it’s a stunted life. It’s also one that’s not going to lead to a very successful society. Certainly not, one, a society that itself is built around having a lot of people from a lot of different places and a somewhat chaotic. I mean, if you’re not prepared for that, if you have spent all your life growing up in an environment that is pretty much just like you and just like your parents and so on, you’re going to have a hard time in life.

Lee Bollinger:

But the main thing is, I think, you’re also not going to have a very not as fulfilled a life. And I see this in my own thinking my own teaching. I mean, I’ll go into a class to teach something on the First Amendment or whatever it is. And I’ll take a position on something. Think it’s really, really strong and powerful and the best classes are those in which you have developed within the conversation. People taking a completely different view and expressing it with equal power that you bring to your view. And of course, I try to do that in my… A great teacher is somebody who helps students do that. But also, it happens because of the context. I mean, the thinking about whatever it is, my field, First Amendment. Because of the great leader presence of women in the legal community, in the academic legal community, has just been profound.

Lee Bollinger:

And I think the same is true of the presence of African Americans in the legal community and the legal academic community. But these are real contributions to how we think about life and understand issues and how to organize a collective existence. So I think the benefits of diversity, as big a question as that is, a good one is one on which you just have to stake your life. There are people who don’t. I mean, there are people who really would prefer this other much more protected existence, and it’s just not who I think we are as a society. It’s not how we’ve reflected ourselves in our legal institutions, our cultural, political, policies about who gets in the country and so on. And as long as we’ve done all of those, it really is a profound commitment.

Preet Bharara:

I want to move off of affirmative action in a moment and talk about other issues of diversity and what the purpose of the university is. But before we do, can you explain what the world will look like? What your world will look like, what universities will look like, if the Grutter case that has your name on it is overruled and race based considerations can’t be taken into account for the purpose of diversity? Will the next class at Stanford be 90% Asian American or will you come up with other ways to value diversity? What’s it going to be? How big a deal is it going to be?

Lee Bollinger:

Right. I think the straight answer to that is that the presence of African Americans will fall precipitously just as has happened, in California, at the University of California and Berkeley. And that will be real tragedy in my view. That’s the upshot. Now, people say, it’d be much better and you can still achieve the level of critical mass diversity you say you want by employing non race based methods like class and income. So the more you take people who are economically disadvantaged, you’ll also get racial diversity and you won’t have to take it into account explicitly. There’s been a lot of scholarship on this. And the short answer is that taking sort of economic disadvantage into account, which we do. I mean, it is very important that people from different parts of the wealth of America have access to universities. Again, as a matter of justice, but also a matter of educational diversity. We do that, but the scholarship shows you do not get racial diversity anywhere close to what you have today by following that.

Lee Bollinger:

And that’s largely because of the population mix, the overwhelming majority of people who are economically disadvantaged are white. So then people say, well, you’ll figure out a way. You’ll know zip codes, you’ll be able because the high school and the housing patterns are segregated. You’ll be able to do that and nobody will know, and you’ll be able to have your diversity. And my answer to that is, you do that and you are violating a decision of the Supreme Court about what the constitution means, and Preet, will sue you, I promise you. And there will be evidence and you will be found to have violated the constitution. And you should, that is, it would be terrible for universities to engage in the subterfuge in trying to achieve diversity when the Supreme Court has held that it’s unconstitutional, as wrong as I think that would be. So the answer, to go back to the beginning, Preet, is there will be far less diversity among African Americans in selective universities.

Preet Bharara:

Are you meeting within the university to think about how to react to an adverse decision? Or are you meeting with your counterparts at other universities around the country or is it too soon for that?

Lee Bollinger:

People are talking about it. They’re beginning to talk about it. I would not say there are meetings and plans and so on, at this point. But people, I think, are becoming aware that this may become a new reality that would be highly, highly unfortunate, tragic, as I said. But not yet ready to plan for it.

Preet Bharara:

So moving away for of affirmative action itself, but staying with the issue of diversity, you said something interesting…

BUTTON:

Thanks for listening to part one of my conversation with, Lee Bollinger. There’s much more to come in part two, including a discussion of whether elite universities need such large endowments. Plus, has the college application process become too competitive? That’s coming up next week. Stay Tuned. My conversation with Lee Bollinger continues for members of the CAFE Insider community. To try out the membership free for two weeks, head to cafe.com/insider. Again, that’s cafe.com/insider,

Preet Bharara:

As you know, February is Black History Month. And as you also know, Black History is American history and it deserves study and appreciation every month of the year. But I wanted to highlight for a moment, an event in Black History that doesn’t get nearly enough credit. And the efforts, the two inspiring black legislators in Washington have undertaken to try to change that. On Monday, Democratic Washington, DC, Congresswoman, Eleanor Holmes Norton, and New Jersey Senator, and Stay Tuned veteran, Corey Booker, formally announced their intention to introduce a bill, to award the Congressional Gold Medal to the 200,000 black Americans who fought in the civil war. If you haven’t spent time reading up on this history of black participation in fighting to preserve the Union, I recommended it. Black Regiment began organizing officially on May 22nd, 1863. When the war department issued General Order 143, which authorized the formation of segregated units called and decidedly dated language, the United States Colored Troops.

Preet Bharara:

As with the Emancipation Proclamation, Lincoln, initially resisted, issuing the order. Black activists changed Lincoln’s mind with none other than, Frederick Douglas, leading the charge. In the months before the General Order, Douglas pressured Lincoln to consider allowing and assisting black efforts to support the Union cause. And after all, who had a larger stake in the issue than black people in America. Douglas also gave speeches to black audiences, encouraging enlistment. After the order on July 6th, 1863, Frederick Douglas, delivered an address in Philadelphia and explained why he thought the order was so crucial. Douglas said, “With one courageous resolution, we may blot out the hand-writing of ages against us. Once let the black man get upon his person, the brass letters US. Let him get an Eagle on his button and a musket on his shoulder and bullets in his pocket. And there is no power on earth or under the earth, which can deny that he has earned the right of citizenship in the United States. I say, again, this is our chance and we [inaudible 00:55:04] be tied us if we fail to embrace it.”

Preet Bharara:

Douglas then quoted a passage from Shakespeare’s Julius Caesar, uttered by Brutus shortly before battle. “There is a tide in the affairs of men, which taken at the flood, leads onto fortune. Omitted, all the voyage of their life is bound in shallows and in miseries. We must take the current when it serves or lose our adventures.” By the end of the conflict around 10% of the Union army was black. Did you know that? Almost 19,000 black soldiers served in the Navy, too. And even those who were unable to enlist played a central role. Harriet Tubman, for example, served as a spy for the Second South Carolina Volunteers. Black soldiers also died in massive numbers. Around 40,000 soldiers perished in the war, 30,000 from infection and disease. There are far too many specific stories of black heroism during the conflict to list, but here are a few one.

Preet Bharara:

Well known example is the 54th Regiment of Massachusetts Volunteers, a black unit that lost half of their troops in July 1863 during an assault on Confederate positions at Fort Wagner, South Carolina. Their heroism was immortalized in the 1989 film, Glory or Robert Smalls, who escaped from slavery in Charleston by stealing a Confederate supply ship called, the Planter. Smalls became a leading recruiter of black Navy soldiers and conducted numerous raids from the Planter. After the war, he became a state legislator in Reconstruction South Carolina. Or Susie King Taylor, born into slavery in Georgia in a 1848. She was only 14 when she began working with famed nurse Clara Barton, caring for wounded soldiers at a hospital in Beaumont, South Carolina.

Preet Bharara:

Congressional Gold Medal bill co-sponsor, Norton, may have put it best when she explained the significance of her proposal to the Washington Post. Said, Norton, “All I can say is, what took us so long? But since it’s taken us, what is it? 150 years after the civil war, Black History Month is a good time for the House and the Senate to honor these soldiers and sailors, 200,000 of them who served in the civil war.” So thank you to Congresswoman Norton and Senator Booker for your leadership. And thank you to the hundreds of thousands of black Americans who fought for the Union and the millions of black heroes who continue to push us toward a more perfect union today.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Lee Bollinger. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me, @PreetBharara with the #askPreet. Or you can call and leave me a message at 669-247-7338. That’s 669-24Pret. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and Vox media Podcast Network. The executive producer is, Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. And the CAFE team is, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan, Sean Walsh, and Namita Shah. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.