To make decisions that engage in rigorous analysis and therefore are more likely to identify court issues that need to be addressed. Our commitment is developing original highquality research and Educational Programs like the one you are participating in today. It provides understanding and information that is useful the legal and policy debates surrounding these issues. I will be watching on the livestream and you can watch it on cspan. Our panel of three experts today comes with a special impressive background, litigating and analyzing issues before the u. S. Supreme court. Im only going to give very brief bios and leave the extensive ones to your own investigation at the email used the links in the mail you receive for the website for more information is available. You can learn more about these participants and the economics in our program. Our distinguished Panel Includes erin murphy aaron murphy, andrew pincus. The mentalist go back and forth about six cases and we will have enter Panel Discussions as well as q and a at the end. If you have a question, submit them using the q and a box at the bottom of your screen and keep your questions brief so you can answer in virtual formats. Identify yourself in the restaurant. With that, i will turn over to aaron murphy. Thank you, professor and thank you to everybody for joining us today. I will kick things off with one of the bigger cases that came out at the very end of the term this year which is 303 creative. This is a case arising out of colorado public accommodations law which is a law that prohibits discrimination on a wide variety basis including sexual orientation. Law broadly defines public accommodation that applies to a business that provides any service to the public. As a result, this law and a few other laws that states have are similar in nature. It led to a lot of disputes over the past few years involving whether people who provide principally various Wedding Related Services that object to samesex marriage on religious grounds to be required to provide their services for samesex wedding. Some of you may recall this issue a few terms back in a case called Masterpiece Cake shop which involved the business that provided custom cakes for weddings and the custom cake maker was wasnt going to provide them for samesex weddings based on religious beliefs. The court did not resolve the constitutional question there. They ruled that it would violate his first minute rights but the court resolved its case on narrow grounds to find that there had been over discrimination by the state board on the basis of religion. This litigation continued in the lower courts for several years. The Supreme Court has of multiple chances to take it up but had turned down several cases until this 303 creative case came along last term. 303 creative is a custom website and Design Business run by a woman named lorie smith. She designs websites for groups and causes and decided he wanted to expand her business to make custom wedding websites. She is a devout christian and she is unwilling to do websites for samesex weddings on the basis of her religious beliefs. Whats stipulate a by the parties on both sides is that they should serve any customer regardless of sexual orientation. If someone wanted to promote Animal Rescue shelters or other charitable organizations, she would say yes regardless of how they were identified but she would was unwilling to use her creative talents to create a website that expressed a message supporting samesex marriage regardless of who the actual customer was requesting that website to be made. It was pretty clear from the way colorado had applied its public accommodations law in past cases that this was going to present a problem for her so she brought the lawsuit arguing that to apply the law and force her to create wedding websites for samesex marriages would violate her free speech and free exercise rights. She had lost in the lower court. The Court Granted review but notably, while both the free speech and free exercise claim are in the case, the court decided to grant her only on the freespeech claim. This was a case with a huge overlay of religious liberty and for many, they think of it as a religion case, it actually was decided purely on freespeech grounds and 303 creative ultimately ended up availing in a 63 decision. This was one of the cases that divided along the 63 conservativeliberal divide with the court writing approval. Its one of the fewer of the big cases that has two opinions, he majority and a dissent. I think for the court for both sides of the court, this case came down to a matter of streaming. The court has upheld a public accommodation laws against a bardi of challenges but also has a string of cases in which it repeatedly held that the First Amendment prohibits the use of public accommodation laws to compel people to engage in speech or expression with which they disagree. Some of you may recall from a couple of decades back, the early case where the Court Unanimously held that applying a public accommodations on required private reorganization organizers to include a gay and Lesbian Group and they say who would violate the Fourth Amendment rights. The dale case, the Supreme Court held that applying public accommodations would require the boy scouts to reinstate reinstate a gay scoutmaster. The majority view this case with hurley and dale. Thats the significant art because the because the court said it was clear there actually was speech this was on the speech side of the First Amendment in our because there was critical stipulations in this case. The parties on both sides stipulated not only that website or a form of speech and expression but that the website that three of three creative produces are expression on behalf of the customer and three of three creative itself and for the majority, once you have a business thats essentially in the business of using creative talent First Amendment protected activities, the hurley and dale cases compelled the ocean that you cannot apply the public accommodations law to propel someone to speak a message which in against which they disagree. Im not sure the defense actually disagrees with that proposition law as a general matter. Dissent has viewed this through different from working viewed this as a case about not space but conduct. Its a business providing a service in the speech is pretty incidental for three of three creative. At debate was how to think about the case and less about, im not sure the dissent would really say yes, you can compel a painter to paint a painting celebrating communism if they disagree and various types of things. The last things i would note is in the future, where we go from here, there is difficult questions about what is and isnt speech and there will be plenty of cases were that will be litigated. Is the custom cake baker engage in First Amendment activity, what about the custom florist, what about whoever designs the tables at the wedding . There are all sorts of Different Cases with questions there. Part of why thats tricky is if you have a case that doesnt involve speech but does involve sincere religious objections, then what happens . Does it violate the free exercise matter to compel someone to engage an to any that violates their religious beliefs . The court has dodge that question because they havent settled on what it wants to do with his free exercise jurisprudence and in particular, while this case helped resolve a lot of them that involve First Amendment speech activity, there will still be litigation about the cases Going Forward. Thank you. Did you have any comments or thoughts on this . Sure, i think its concerning. I think we really have opened up a whole new avenue for challenging public accommodation laws. This is about weddings but nothing restrictive. Its about some company or Service Providers objections about weddings. There could be all kinds of other objections but certainly nothing restricted to samesex weddings. I guess i disagree a little bit about where the dissent was. Part of the defense argument was this is about the product you provide. You can certainly provide a product that says my celebration is limited to opposite sex marriage or i am celebrating opposite sex marriages and if you say that, its a constant characteristic of your website than thats fine. The problem here is in the provision of this generalized services. We have already seen lots of cases and lower courts and even just people pivoting off this decision in terms of florist and musicians and bakers and dancers , again, i think its very concerning in terms of we dont serve you opportunities that it opens up. Yeah, i agree on one thing which i would add. In terms of consequences or Discrimination Laws more generally, i will talk about affirmative action cases next. In terms of the breadth of the decision, it will be interesting to see what implications it might have what applicability it may have to Discrimination Laws more generally in every which direction. Especially including a significant number of businesses. You are right, this is one of the two opinions that came out of it and its a pretty broad decision and we will see what the locations are. I imagine it will happen for years to come. I will use that as an opportunity to go into the affirmative action cases which is the next set of cases we were going to cover or that i will cover. This is also one of the really big ones of the term. Maybe the most important decision but i will let others decide what they think on it. The case was argued way back in november and they have a term in june 29 and there were two cases, one came out of harvard and the other came out of unc. Both schools use race as one of many factors in admissions policy for the purpose of achieving education diversity. Those were challenged and they were challenged under the equal protection law for you with dish for unc and title vi for both schools. After a trial, the lower upheld both admissions policies as satisfying strict scrutiny under District Court and the real critical question before the court was whether or not the court was going to adhere to broader guidelines. Ultimately, the answer was the court effectively overruled gru nner. It doesnt explicitly say that and this was another one of them for the end of the term that was a 63 decision amor the more traditional lines. There were more than two opinions in this one. I wont spend it on of time and the other decisions. We are talking well over 200 pages of decisions in this case. It takes a while to get through. To summarize it, the majority in the chief justice wrote the majority decision and articulated the threepart test. The first one is the program has to comply with strict scrutiny and that follows from prior cases. Maybe with more of a twist. The second is a program can ever use race as a stereotype or negative in the third is that the program must have an end. The court found that the programs did not satisfy strict scrutiny for two different reasons. One is the compelling interest that was identified was education diversity which had been the last to speak but according to the court when the schools are talking that educational diversity and the specifics of that, it was something that couldnt be measured. Educational diversity did not satisfy the standard. It was also not narrowly tailored to achieve that interest. According to the court, they didnt really provide any connection between that interest in the program. Couple of things they pointed to but one was how the different races our group and the idea that all groups were grouped together. The court basically said that admissions are a zerosum game. Its a positive for some and it negative for others. One of the quote that jumped out from this part of the decision was the idea that its an inherit benefit in race according to the court. Its something you cannot have. Finally, the no end. There was language in there talking essentially about the 25 year sunset. They said 25 years from now, the use of racial preferences will no longer be necessary to further the interest of today. According to the majority, the policy in order to be potentially affirmed under the equal protection law needs to have a definitive endpoint and the parties havent tried to suggest there would be one. Grutter effectively is no longer. It doesnt say that in the majority but its not hard to see any policy or any consideration of race that decides to admit one applicant over another does not support analysis. If you look at the majority decision, another thing that jumped out and is reminiscent about something that was written in an earlier case was that eliminating Racial Discrimination means eliminating politics. In a prior case back in 2007, there is the famous quote that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race so thats really the bottom line that comes out of the majority decision here. There is a paragraph tore the end on page 39 of the decision that i think we will see a lot of litigation about. It leaves open certain practices. The court explicitly left open the idea that universities can consider an applicants lived experience. This means you cannot consider a race in and of itself is you can consider experience and skills that may be informed by a number of Different Things including race. Right after saying that, the court was careful to say that you cannot indirectly do what the court says that universities may not simply establish your applications or other means a regime that we hold unlawful today. The court also left untouched control mechanism for achieving diversity such as giving preference to firstgeneration College Applicants for those who speak multiple languages or socioeconomic background. There is a lot of differences and i wont go into of them but there were three concurrences and two dissents. There is a lot baked in their. Let me focus on a couple of takeaways around this. Thank College Admissions is pretty clear. Any decision to admit one applicant over another is cannot be based on the applicants race. There is a footnote that suggest that maybe there is a possible exception for military institutions. That may be another case we will see soon. I think there was still be continued litigation about the paragraph on page 39. Whether decisions are being made based on lived experiences or whether that serves as a proxy for race. This wont be a huge change for public universities where state law already prohibited race conscious admissions policies but for private universities in that space, in other states, we will see significant change. I think we will also see some impact in College Admissions, title vi i mentioned earlier that discrimination on federally funded programs. The majority decision applies to the same rule with the equal protection clause and it will have a direct impact there. Justice gorsuch also had a concurrence in which she said the analysis should be different for title vi, just a question of interpretation. But that that interpretation should look the same as the title vii interpretation in a case he decided fairly recently. In some ways, its more absolute. I think the other outside College Admissions potential consequences in the employment are key. Even though this decision doesnt explicitly change the law in that area, there is a real possibility courts will look to this decision in looking at title vii cases and affirmative action policies and looking at things like the ei initiatives dei initiatives. There is a statue called 1981 that doesnt directly deploy apply here but it will might be surprising to see the court looking in this direction and interpreting case law in other areas. I think there will be more litigation to come on this issue both within the context of universities and beyond that but i will leave it at that. Erin or abby, any thoughts . For anybody who has been following this area, it was not a huge surprise. If you think of the justices in the center of the court now, this has been a project of the chief justices for quite some time and it was not surprising to see them write majority opinion here. Someone was a connoisseur of chief opinions, i think its one for the books. Its a wellwritten opinion regardless about what you think about the outcome. I agree is the beginning but not the end of litigation. For a long time, in the schools because of the overshadowing of grutter, they will look at what they are doing and i think the final paragraph and what its hinting at is that you cannot be using essentially using race as a proxy via essays and such Going Forward that will have to lead to cases where we will see real discovery and looking at whether it turns out you admit students on precisely the same ultimate breakdown or any time they have a student of a certain race mentions a recent essay in all of that is harder to understand. You cannot overtly say in your policy that you will do what the Supreme Court says you cant do but some schools say they will figure out policy to get to the same results and that has opened up to more looking behind how these policies and practices work. Its been happening for quite some time but we may see it in the employment context in more traditional conceptions of discrimination on the basis of race and start seeing it more in the context of efforts to promote diversity within the workplace. A tremendously important decision but really the beginning, not the end of implications in this area. I completely agree. I think its the beginning the other question we really dont know the answer to is what does this mean for programs that are designed to lead to a Diverse Workforce or a diverse educational student body but the dump use race as a criteria . Maybe a program where you are the firsttier family to go to college or other kinds of cr