Link To Guest Website: Tarlow Breed Hart & Rodgers

Title: “How Affirmative Action Rulings Could Affect Businesses”
Guest: Mark Furman – Tarlow Breed Hart & Rodgers
Interviewer: Jeffrey Davis – MAGE LLC

Click here to read the transcript

Jeffrey (0s):
Hello, everybody. Welcome back to Radio Entrepreneurs. The radio show that features the stories of leadership and entrepreneurship and how to deal with this ever-changing economy every week. We’d like to speak with Mark Furman attorney at the law firm of Tarlow Breed, Hart and Rodgers it’s entrepreneurship, and the law with Mark Furman. Welcome back, Mark.

Mark (21s):
Hi Jeffrey. Great to be with you.

Jeffrey (24s):
Thank you, mark. There’s a lot going on. And in terms of the law and business right now, what’s what’s on the agenda for today?

Mark (32s):
Well, we have a, a big development in the fact that the United States Supreme court has just accepted cases from appeals, brought challenging, the use of affirmative action policies that the U universities, particularly Harvard and UNC, and in both cases, low, lower court judges have found in favor of the institutions, which allow race among other factors to be considered actually many other factors to be considered in the admissions process.

Mark (1m 15s):
But the challenge brought in these cases is claiming that this is in effect, race discrimination, that the use of affirmative action in admissions is, is in violation of rights to of equality. And it’s a very hot button political issue. And as you know, Jeffrey, the makeup of the Supreme court has been significantly altered as a result of the election of president Trump in 2016.

Mark (1m 58s):
And he had the opportunity to appoint a number of Supreme court justices and changing the balance of the court between liberal and conservative justices. So, you know, we have the abortion case. That’s working its way that’s before the court, their second amendment cases. And now we have this affirmative action case, all very hot button, political subjects, all matters of great division within the country.

Mark (2m 41s):
And I think the, a lot of people think that that they’re gonna abolish considering race and admission standards and if not dramatically narrow the way it can be used. So, you know, we have, you know, one of the reasons it’s so political is, is because, you know, for a long time consideration of race has been allowed under Supreme court, precedents and quotas are prohibited, but a consideration of race has been allowed among other factors.

Mark (3m 35s):
And, and the plaintiffs in the, I believe it’s the Harvard case, did a statistical analysis showing how it impacts the people in the top tier of their classes, how, how their, what the result is in terms of college admissions for Asians, Asian Americans, Hispanics African-Americans. And so, but there was a, a lengthy trial on the Harvard case that, that I followed 130 page decision.

Mark (4m 22s):
I think it was by federal judge finding for Harvard. It was affirmed on appeal and now the Supreme court is going to take the case and along with the other case. So I am skeptical that they’re taking the case in order to affirm the decisions below there’ll be in all likelihood, some chance,

Jeffrey (4m 51s):
Well, I’ve, you know, I’ve heard grumblings about affirmative action, you know, the, you know, and I, I seem to remember Dershowitz, you know, talking about the problems with affirmative action, that it actually discriminated against some smaller minorities that have benefited by being in America for a longer time. And, you know, if you said maybe a more minor decision, maybe this is just the time to adjust it to the current, you know, dynamics of America not really eliminated, but what I’m thinking is if they do make some decision, there’s going to be implications across the whole country. It won’t, won’t, won’t, won’t this trickle down to a statewide level in multiple states, we’ll see lawsuits in other states.

Mark (5m 38s):
Absolutely. It will set the nationwide rule regarding whether race can be considered in the admissions factor. So it will impact every state because it’s, and, and I, I think the court, you know, based upon past cases have, and, and the new makeup of the court, I think there’s a little bit of a signal is going to be a pretty dramatic change, if not a elimination of race as a factor.

Mark (6m 19s):
It’s just another example of the consequences of elections. And the, you know, we have, you know, a third of the court is, was appointed and affirmed by president Trump, highly unusual that a one term president would get that much of an opportunity to, you know, to nominate new judges. So as judges retire and new judges come on, the court has implications.

Mark (7m 2s):
And, you know, our federal elections are critically important in deciding so many policies and, and who is on the bench is, is one of the, one of the things that gets decided in large part in elections. I mean, the federal judges do have to be approved by the, by the Senate, but, you know, if you have the president and the same party controlling the Senate, there’s not a lot of check and balance there.

Mark (7m 42s):
So, so it’s, I think a fairly dramatic change in the court and much more conservative court. And we’ll have to see what the ruling is on in this case.

Jeffrey (7m 59s):
So again, I’m going to go by the assumption that there’s going to be some adjustment just for the sake of discussion and I can’t help, but think that if that happens, that would have implications for hiring practices of corporations who have been following affirmative action rules as well, and trying to abide by certain standards for hiring a, that someone’s going to start challenging that as well. So if it starts at schools and things change, it’s going to go to employers. There are more people being employed than there are people going to school. And I know as a management consultant, you know, as a, as, as an attorney, that employers are very concerned about how they hire what they say when they hire who they look at, how they fire, you know, how do you know who’s easier to fire than others and an employee at will?

Jeffrey (8m 48s):
So I would think this could trickle down all the way through our economic system to entrepreneurs as well. You agree?

Mark (8m 56s):
Yes. You know, there are, you know, there are laws that prohibit discrimination, right? So what’s, you know, what is discrimination is, is what the court is grappling with and different people view it very differently. We, I mean, look at Harvard, for example, as an employer, so huge, it’s a huge enterprise. The number of people employed in government, and then you have all the companies that accept government money for in one way or, or another that are, are bound to those standards.

Mark (9m 46s):
So it’s, it’s a huge case that I think will have dramatic implications, not just to the admissions process. And, you know, it’s, it’s something our country started with slavery and has a history going back even after the abolition of slavery of discrimination. And, you know, it’s just been a, a struggle for 200 and almost 250 years around, you know, dealing with race in our country.

Mark (10m 30s):
And this is just another example in the evolution of, you know, in part of it is a legal battle. And part of it is just the political battle of where we are, where we’ve been, you know, are we, have we evolved to the point of not needing race to be a factor? Is it so, I mean, as long as I’ve been practicing law, the subject of race has been a, an important part of Supreme court cases, state court cases, the interpretation of federal statutes, the interpretation of state statutes rules made by agency.

Mark (11m 24s):
This is a societal wide issue with great significance. And, you know, now we have a point where the third new judges on the Supreme court and there, they seem to adhere to, you know, you never know what a judge is gonna do once they’re on the court, but based upon their history, it would be, I’m skeptical that the court’s gonna affirm the low court rulings and the case

Jeffrey (12m 1s):
Overturning rulings. You would know, you know, what the batting average is on that. That’ll be interesting to see that the part that I sort of feel again is this, that almost no matter what happens, there’s anger on both sides of fairness, this strife that exists between different groups that feel that they’re being taken advantage of on both sides, I think is just going to continue. And it, it creates, it does create problems in a lot of, and in the workplace, you know, don’t talk politics, you know, it’s, it’s a dangerous, it’s a dangerous discussion to ever have politics in the workplace being discussed.

Mark (12m 45s):
Well, we, you know, in terms of education, I’ve always thought education is the key to economic opportunity. And, you know, we, when I was younger, I’m still young as you know, but when I w when I went to a public college tuition was very small. And I think when it was raised by a hundred dollars per semester, there were massive student protests, but a lot of first, first folks in the family to go to college. And so the whole subject of educational opportunity is a gut wrench, or it’s a, and you know, the affordability of college, the access to college.

Mark (13m 40s):
And now we’re talking about the elite colleges to,

Jeffrey (13m 45s):
It’s a, it’s a hot topic. I know it’s interesting. I, you know, I went to university in Canada at all schools in Canada or public colleges and Canadians are the Mo, or I think by percentage, the highest educated people in the world, it was always expected that everyone would go to university. I think when I went to university was $600 a year. So, and to get a quality education, and it just was assuming that you, when you’re in Canada and you’re competing with the largest economy in the world, everybody’s got to be educated. You know, you don’t have a choice. So it’s interesting how things have evolved and changed. I think you brought up a great subject, mark. I know we’re going to be talking about it again. If someone’s looking for you, as I said, these issues do trickle down to organizations, how do they find you a Tarlow Breed, Hart and Rodgers?

Mark (14m 32s):
I can be reached to them. Ferman, F U R M a or at 6 1 7 2 1 8 2 0 2 5.

Jeffrey (14m 45s):
That’s Mark Furman entrepreneurship, and the law firm, the law firm of Tarlow Breed, Hart, and Rodgers. My name is Jeffrey Davis from major LLC, and we will be right back with more stories on Radio Entrepreneurs.

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