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Smerconish

Ruling Limits What Cities Can Do About Homelessness; Judge's Ruling Limits Government Social Media Controls. Trump Still Dominating GOP Race; Legacy Admissions Challenged After Affirmative Action Ruling. Aired 9-10a ET

Aired July 08, 2023 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[09:00:00]

MICHAEL SMERCONISH, CNN ANCHOR: Is more cruel and unusual. I'm Michael Smerconish in Philadelphia.

One of the most influential appellate courts in the nation erupted in public disagreement this week over one of the most difficult and contentious issues of our time, homelessness. Having recently decided matters of affirmative action, student loans at adoption, on top of last year's rulings concerning abortion, guns, religion and climate change, SCOTUS might soon have the final word here too.

Add issue, ordinances in Grants Pass Oregon, which would impose fines on homeless people for encampment on public property. A trial court was faced with this issue, whether cities can impose criminal penalties for sitting, sleeping or lying outside on public property for homeless individuals who cannot obtain shelter. It held that the ordinances were unconstitutional and constituted cruel and unusual punishment under the Eighth Amendment. The matter then came before the powerful Ninth Circuit Court, which has jurisdiction for much of the western United States and all of California. The Ninth Circuit has traditionally been regarded as a progressive bastion, but elections have consequences, President Donald Trump was able to appoint 10 judges to the Ninth Circuit, President Biden has appointed seven.

In 2018, the Ninth Circuit limited what Boise, Idaho could do with regard to its homeless. This time, a three judge panel similarly ruled against a city's effort to regulate its homeless population. And when Grants Pass then sought to have the matter considered by the entire Ninth Circuit, it could not get the required majority vote from all active members of the bench. And that's when all hell broke loose among the judges. There 29 active judges on the court, the denial of a full review drew 16 dissents and other statements, and many were blistering.

As the Oregonian reported, "Many who dissented argued that the Grants Pass ruling created a confusing set of rules based on a flawed interpretation of the U.S. Constitution and made the courts judges into inappropriate homeless policy czars. The original ruling placed a straitjacket on West Coast cities that are now left with little recourse to deal with an insurmountable and widespread rise in homelessness, the dissenters wrote." The conservatives on the court, they struck a united front. As the Los Angeles Times put it, "In their responses, the courts conservative wing painted a dystopian portrait of an American West deprived of its public spaces and under siege by an overwhelming epidemic of homelessness."

In response to Clinton appointed judges in the majority on the panel, Roslyn Silver and Ronald Gould, wrote that the dissent had exaggerated the original ruling which, quote, "Holds only that governments cannot criminalize the act of sleeping with the use of rudimentary protections such as bedding from the elements in some public places when a person has nowhere else to sleep. It does not establish an unrestrained right for involuntary homeless persons to sleep anywhere they choose."

I've previously reported on the tragedy of homelessness in both Los Angeles and San Francisco, both cities are subject to the law established in this decision. After touring Skid Row in L.A. and the Tenderloin in San Francisco, I came away thinking that homelessness is not the core issue, but a manifestation of what drives the problem, namely mental health and drug addiction. So the real question becomes, is it cruel and unusual to impose a fine on homeless people in a public encampment? That's the view of the Ninth Circuit panel. Or is it cruel and unusual to allow individuals who due to mental illness and drug addiction lack the capacity to make sound judgments to keep themselves safe?

I have a feeling the Supreme Court is going to take on this case, and decide the ladder. But I want to know what you think. Go to my website @smerconish.com, answer this week's poll question, which is more cruel and unusual, finding the homeless or leaving them alone?

Joining me now, the lawyer who's representing the city of Grants Pass, Theane Evangelis, she's a partner in the firm of Gibson Dunn.

Theane, thanks for coming back. What's wrong with the majority thinking that if there's not a bed for someone, it'd be cruel to find them?

THEANE EVANGELIS, PARTNER, GIBSON DUNN/REPRESENTING GRANTS PASS, O.R.: This is an urgent crisis. And this case is about giving cities the tools they need to solve it. The courts decisions from the Ninth Circuit have created a situation that's unworkable. It's caused paralysis at a time when we desperately need action. The Ninth Circuit's view of the Eighth Amendment is unprecedented and no other court in the country has adopted it. And right now, when we're faced with this crisis of 1000s of people who are dying on our streets, cities need to have the flexibility and the tools to address it.

The Ninth Circuit's opinions are really a serious part of this problem that have tied the city's hands in addressing this crisis.

[09:05:00]

SMERCONISH: The two who wrote the majority opinion, the two Clinton appointees as I referenced, they say, wait a minute this is all being mischaracterized. We're simply saying you need to have a bed for someone before you go and criminalize their behavior. And if you don't have the beds, then you're limited.

EVANGELIS: Well, with the Ninth Circuit has held in these decisions, actually, is that the cities can't prohibit anyone from camping in public until there are enough shelter beds for everyone. And again, no other court has adopted this sweeping view of the Eighth Amendment. And if you look at the numbers, the sheer magnitude of this problem, it's unworkable, because there are, for example, in the city of Los Angeles alone, over 70,000 homeless individuals right now. So, it is, in the meantime, an urgent problem.

SMERCONISH: Right. I'm playing devil's advocate with you, though, because I happen to see this in similar fashion to your position. But the majority in this case says, hold on, it's fundamentally unfair if they have nowhere to go. And if there's not a bed for them, then they have nowhere to go. What's the response to that?

EVANGELIS: Well, this is a complex problem. As you said, Michael, this is a problem that cities need to debate. Our local communities need to figure out what the right solution is in each community. We need to hear from experts in mental health, substance abuse, housing, there's no one size fits all solution. But what the Ninth Circuit's decision has done is take that debate off the table, it's put courts in charge of homelessness policy across the western United States.

And the results of these decisions can be seen by anyone who walks down the street in any of our cities. And from San Francisco to Phoenix right now, both of those cities are under federal court injunctions preventing them from doing anything to address this problem. And that's what's cruel and unusual. This is a tragedy. And these decisions are hurting the very people they were meant to protect.

SMERCONISH: Theane, and a I remember, we had a conversation, the two of us after Boise, you wanted the Supreme Court to take the Boise case, and it didn't. Do you think the court is going to take this matter now given this ruling? And if so, which way do you think it goes?

EVANGELIS: Well, we certainly hope that the court -- well, we had hoped that the Ninth Circuit would take up the case again and reverse course, but it refused to do so. And now there are millions of people across the entire western United States who are looking to the Supreme Court to untie the hands of our local governments and to allow us to take action.

SMERCONISH: I hope that people's eyes did not glaze over during the setup, but I thought it was important to try and set the stage. What's the takeaway? What just happened here for someone who's paying partial attention and wants to understand what it means to them?

EVANGELIS: Sure. Well, 16 judges on the Ninth Circuit have really sounded the alarm. And they have said that this decision, these decisions are wrong, they're causing this problem to worsen. Conditions have gotten so much worse since last time we spoke, Michael, and we hope that the Supreme Court will intervene to help solve this problem. SMERCONISH: Thank you, Theane. Appreciate your being here.

EVANGELIS: Thank you.

SMERCONISH: What are your thoughts? Hit me up on social media, I will share some during the course of the program. And by the way, we've also got a new feature @smerconish.com, you can live chat during the show and I'll pull some of those comments also.

This comes I think, from the world of YouTube. What do we have, Katherine (ph)? We already know how this court will rule on any case involving homeless people says Harvey. I guess, meaning that he thinks the Supreme Court or the -- are you talking about the Ninth Circuit? Because the Ninth Circuit has changed in its composition. But I think you're talking about the Supreme Court of the United States.

I think they need to take this case. They should have taken the Boise case, they didn't. The country needs defined parameters relative to how to deal with this problem, and it is a problem. And right now, you know, the western United States, I agree with her characterization and that of the descent, they've been put in a straitjacket, they don't know what to do. And this seems to really limit their opportunities to provide some help to people who desperately need it.

Remember, I want to know what you think. Go to my website @smerconish.com and answer this week's poll question, which is more cruel and unusual, finding the homeless or just leaving them alone?

Up ahead, a federal judge ruled against the government being able to tell social media platforms how to moderate certain content, calling previous efforts arguably the most massive attack against free speech in United States' history. I'll talk to one of the plaintiffs, Dr. Jay Bhattacharya, who says his unconventional approach to COVID-19 was censored.

[09:10:03]

Plus, now that race based college admissions are out, legacy admissions are under fire. I'm going to try to make the case that they should stay.

(COMMERCIAL BREAK)

SMERCONISH: This week, a federal judge in Louisiana restricted the Biden administration's interaction with social media companies. Judge Terry Doughty said this, "If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States' history." That might be an overstatement, but by the time this case winds through the appellate process, it might produce one of the most consequential speech decisions in United States' history.

The case was brought by the attorneys general of Missouri and Louisiana and half a dozen other plaintiffs who "The New York Times" described as follows, quote, "five individuals who campaigned against masks, argued that vaccines did not work, opposed lockdowns and push drugs that medical experts denounced as ineffective like ivermectin and hydroxychloroquine."

To address what it believed to be the spread of misinformation, White House officials and public health agency leaders held biweekly meetings with tech companies over how to curb the spread of what they regarded as misinformation during the pandemic.

[09:15:09]

Former White House Director of Digital Strategy, Rob Flaherty and COVID-19 Advisor Andy Slavitt were in constant contact with social media executives. According to the opinion, here's an example of what ensued, in an email following an April 2021 meeting between Biden administration and YouTube officials about vaccine misinformation and efforts to combat it, Rob Flaherty, former Deputy Assistant to the President and Director of Digital Strategy, wrote that his concern about misinformation on YouTube was, quote, "shared at the highest, and I mean the highest, levels of the White House. Flaherty indicated that the White House remained concerned that YouTube is, quote, "Funneling people into hesitancy and intensifying people's vaccine hesitancy." Adding, quote, "We want to make sure that YouTube has a handle on vaccine hesitancy and is working toward making the problem better.

Throughout the entire opinion, the judge highlighted several uses of the words we and partnership, reinforcing the idea that the government was pressuring a private company about curtailing speech. The ruling provides exceptions when it comes to posts involving criminal activity, national security threats, voter suppression or foreign interference in elections. Critics warned that it could curtail efforts to combat online misinformation. The Justice Department is appealing and requesting a stay. A White House official defended the administration's actions, saying the government, quote, "has promoted responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections.

Two of the plaintiffs have been guests of mine variously on CNN and on my Sirius XM radio program, Dr. Jay Bhattacharya and Dr. Martin Kulldorff. They also co-authored a piece for smerconish.com Back in 2021 titled, The Beauty of Vaccines and Natural Immunity.

Well, here's how they're identified in the legal opinion. It says, plaintiffs Bhattacharya and Kulldorff are infectious disease, epidemiologists and coauthors of The Great Barrington Declaration published on October 4, 2020, the GBD criticized locked down policies and expressed concern about the damaging physical and mental health impacts of lockdowns. They alleged that shortly after being published, the GBD was censored on social media by Google and Facebook, Twitter and others.

Joining me now is Dr. Jay Bhattacharya. He's an epidemiologist who's a professor of health policy at Stanford University. He also has a PhD in Economics.

Jay, welcome back. Doesn't the government have some degree of obligation to inform social media platforms about that which might be harmful to the public?

DR. JAY BHATTACHARYA, EPIDEMIOLOGIST/PROFESSOR OF HEALTH POLICY, STANFORD UNIVERSITY: I mean, the government has the platform, they have the bully pulpit, they can say all it or whatever they want, no one stopping them. The question is whether the government can use its power and force to tell social media companies who to censor and what to censor and threaten those social media companies, if they don't comply, as they actually did.

In the discovery for this lawsuit, what we found was that Rob Flaherty sent e-mails to Facebook directly threatening regulation around section 230 saying, look, you know, basically -- effectively, Michael, that's a nice company you got there, wouldn't it be terrible if something were to happen if you didn't censor these people, these ideas. And the irony is, Michael, is that they were censoring in service of ideas that were wrong. They were protecting -- the government was protecting its own misinformation, criticism of its only misinformation by its censorship activities. So for instance --

SMERCONISH: I guess what -- I guess what I'm saying is that if the government -- if the government had limited itself to providing what it regarded as valid information without being coercive, and I think in this opinion when you look at the examples, for what I just showed, you know, this is coming from the highest level, and I mean, the highest level of government, I think it turned coercive. But I don't think that the government surrenders its own speech right. I mean, you know, the White House press secretaries got the absolute opportunity and right to speak on behalf of the administration on a day to day basis. What I'm trying to say is there's a balance somewhere in there that's necessary. Fair?

BHATTACHARYA: Yes, no, that I agree with Michael. I don't think it's -- I mean, this this decision doesn't say the government can't speak. I don't think anyone norm -- like was looking at it reasonably would think that. What it says is the government can't coerce social media companies to censor me, but just because they disagree with me, just because they don't -- that I'm criticizing their ideas.

And Michael, they got it deeply wrong. They were wrong about mask mandates, and yet they forced YouTube to take down a video of me talking to Governor DeSantis in a public video with a T.V. station put on YouTube. Because I said there's no high quality evidence that high child masking does anything, which is absolutely true, there's still no randomized trials. They forced social media to censor true content because it was inconvenient criticism of their policies.

[09:20:15]

SMERCONISH: I remember -- what I remember about the Great Barrington Declaration, is I remember interviewing both you and Kulldorff and discussing, you know, would we be better protecting the most vulnerable among us, and letting the virus run its course, more quickly getting to herd immunity. So, you know, my view on it, I published your essay on my own website. But what ended up happening to you on that issue among the big tech platforms? BHATTACHARYA: So there -- shortly after we published it, Google deboosted it. In some countries, you couldn't even search for the term for it. There's this spiked online article that documents this. In October 2020, Facebook took down the Great Barrington Declaration page for weeks with no reason. Again, there's another article that documents this.

The tech companies, I mean, I don't know exactly the government role in this, but I can say the tech companies, definitely deboosted the signal around the Great Barrington Declaration. But shortly after, four days after we wrote it, we had an e-mail from Francis Collins, the head of the NIH, telling Tony Fauci that there should be a devastating takedown of the premises of the declaration, calling me, Martin Kulldorff, our fringe epidemiologist, the government played a big role in this censorship effort in order to create this illusion that there was a consensus around their policies when there wasn't.

SMERCONISH: I read an essay from Laurence Tribe and Leah Lippman, they wrote an opinion and they said, this is a -- this opinion, is a huge blow to vital government efforts to harden U.S. democracy against the threats of misinformation, you would say what to them?

BHATTACHARYA: I mean, the best way to combat misinformation, Michael, is by real true speech. If the government thinks that there's some idea floating around that's dangerous, well, the way to combat that with speech that says and evidence says that the idea is dangerous and here's the truth. If their government is trustworthy, if the sources are trustworthy, people will believe them.

It's not possible for anyone to claim that they are omniscient and always right, then certainly not the government, it's very dangerous for them to say that. What they should do is they should just engage in discuss in like other normal human beings, rather than using its power to suppress this the suppress the conversation from happening, and especially to, you know, issue a negative social credit score to people who disagree with them. That is I think that dangerous, not the speech.

SMERCONISH: Right. Look, the internet, the blogosphere is a firehose of information. And I think it takes effort on everybody's part, to make sure that we're combating misinformation and I want the government to have a seat at that table. I think I made clear earlier, it's when they get coercive and tell these tech giants they want something taken down, that I think they've crossed the line.

Here's some social media Stay where you are Dr. Bhattacharya. Katherine, put it up on the screen and -- and let's see what it says during COVID many things labeled as misinformation turned out to be true. Well, I guess Austin Conley is making your pitch, Jay. Go ahead and take the final word.

BHATTACHARYA: I mean, it's absolutely true. I mean, if you've on mass mandates, do they work? I don't think so. Did lock downs have tremendous harm? Yes, absolutely, we're seeing the case of what's happening to the kids. We're -- did the vaccine actually stop you from getting and spreading COVID? No, it did not. All of these were deemed misinformation at one point in time or another, you have to -- in a complicated issue like this, you have to let all voices speak. Having the government coerce, I think we on this we agree that having government coerce social media companies to prevent that speech from happening actually worsened the consequences of the epidemic. Made things worse.

SMERCONISH: Right.

BHATTACHARYA: I actually think more people are dead because of it.

SMERCONISH: Jay Bhattacharya, thank you for being here. I'm sure this debate is going to continue on in the social media world as people have just heard what you've said. Thank you, though, appreciate it.

BHATTACHARYA: OK.

SMERCONISH: Make sure you're going to smerconish.com. And relative to homelessness and the subject that I laid out at the outset of the hour, answer this, which is more cruel and unusual, this pertains to the Grants Pass Oregon case now decided by the Ninth Circuit, is it finding the homeless something that the community wanted to do to combat public encampments? Or is it the alternative of just leaving them alone?

Up ahead, a new lawsuit, claims that Harvard -- at Harvard, legacies are nearly six times more likely to be admitted. And that given the end of affirmative action, this now constitutes a civil rights violation. But as someone who benefited from legacy admissions and is now paying it forward, I've got a different take.

Plus, a South Carolina town of a little over 3,000 inhabitants was swamped last weekend with 50,000 Donald Trump supporters. That's in a state with two of its own presidential aspirants, Nikki Haley and Tim Scott. So, what does that mean for the odds of Trump getting the nomination or even being elected again despite his various indictments?

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[09:29:17]

SMERCONISH: For months, we've listened as pundits and leaders try to guess the political impact of Donald Trump's multiple indictments. Well, indictments seemingly have bolstered him thus far, at least among Republicans. And if Fani Willis is next to charge him, it may only amplify his campaign even more.

In 2016, Trump drew 1,000s to rallies all across the country. Last week was pretty extraordinary though. He brought in an estimated 50,000 supporters to a tiny town in South Carolina, Pickens, where the population is just over 3,000 people. He drew a crowd 20 times that number. This was a striking contrast to who is thought to be his biggest political rival at the moment, Governor Ron DeSantis, who held an event in that state. [09:30:00]

Last week, DeSantis only bringing in enough enthusiasm to fill a local activity center in North Augusta in South Carolina. In 2016, Trump won the state with over 30 percent during a very crowded primary season. What make this is week's crowd size even more shocking is that he's now running against two locals for the GOP ticket. Former South Carolina governor Nikki Haley and current senator Tim Scott, both recently held events of their own in South Carolina. Couldn't come close to drawing what Trump drew.

Even though that's not enough to make the state waiver in its support as Trump makes his third bid for the presidency, he has already secured endorsements from the state's governor, three congressmen and its senior senator. Despite his legal woes, Trump is heading the Republican race somewhat effortlessly and the money doesn't lie.

CNN reports that the former president has nearly doubled his $18.8 million from the beginning of 2023. His campaign earned $35 million in donations in the most recent quarter. Voters appeared eager for Ron DeSantis to join the race. He hauled in $20 million in fundraising in his first six weeks of campaigning.

And yet the latest NBC polling shows Trump at 51 percent among Republican voters, DeSantis at 22 percent. Trump actually gained support following his second indictment. In April he was polling at 46 percent. He's now up five points. And it's not a matter of too much competition as some have proposed as in, what if the field narrows?

Well, even in a narrow two-candidate field, NBC says Trump beats DeSantis 60 to 36. But what does the wagering tell us? Joining me now to talk more about it is PredictIt co-founder and CEO John Aristotle Phillips. Hey, John, welcome back.

Your betting market for the GOP nomination, it seems to resemble the current polling, but it's got Trump running even stronger against DeSantis. Tell me what you see in the GOP nomination fight.

JOHN ARISTOTLE PHILLIPS, CO-FOUNDER AND CEO, PREDICTIT: So, in the Republican nomination fight, it's interesting. You have got Trump, as you point out, with a commanding lead. DeSantis has done -- you know, he was -- he had a rough launch to his campaign and he's at, you know, 22 percent odds at this point. So, he's -- he's really gone down a bit in the -- in the betting odds.

It's interesting to see the second tier of Republican candidates. Scott, Ramaswamy, and Christie who are all at six percent odds. And they are looking to -- you know, they are looking to overtake DeSantis. They have got ways to go. And then the other candidates in the Republican side really haven't registered much at all.

SMERCONISH: On the Democratic side of the aisle for that nomination, when I checked this morning at PredictIt, it was Biden at 68 cents or 68 percent as I'd like to think of it. Interestingly, Gavin Newsom at 18 cents, RFK Jr. at 13, Kamala Harris, the vice president, you know, in a fourth position. What do you see in that wagering? PHILLIPS: Well, I mean, Biden was drifting slowly, drifting downwards. That's been arrested. He seems to be settled out at about 70 percent odds or 68 percent odds this morning.

Newsom is interesting because Newsom is, you know, not even a declared candidate but he's -- he's running around the country giving speeches on Biden's behalf but -- and says he is not a presidential candidate but, of course, he is a presidential candidate. You have got Kennedy, who I think has got some room to grow. He's at 13 percent odds. And it's interesting to see where his support is coming from, but it's -- it's -- Kennedy could be the wild card here on issues such as vax and other issues where the other two above him aren't cutting the mustard.

So, you know, the Democratic and the Republican races are wide open still. But there's a clear front runner on the Republican and Democratic side, but their loss is the gain of those below them.

SMERCONISH: OK. And finally, then two quick slides. When you look at the election winner by personality, Biden, 43, Trump, 31, DeSantis and Newsom both at 14. There it is. I'm putting it up on the screen. But when you -- when you ask it generically which party then -- the Democratic Party, 57 percent, Republican, 45. Why when you ask it generically are there greater odds for the Democrats than when you ask it by personally? I hope you understand my question. What's the answer?

PHILLIPS: I do understand the question. The answer is somewhat complicated. But people -- you know, when they are putting their bets down, they are not necessarily just saying who is going to win. They are saying who they think has room to grow.

So, for instance, you know, DeSantis at -- or Trump at 31, if they think his odds are going to go up, they might buy -- they might like Trump at 31 for the general election and hate him at 41.

[09:35:10]

So, you can get in and out of these markets if you think they are overpriced or underpriced. So, it doesn't necessarily correlate.

SMERCONISH: Is this -- is this just -- pardon me but shits and giggles or is there really some predictive value to it? Quick answer.

PHILLIPS: It's predictive. The stats show these betting markets are far more predictive than polling.

SMERCONISH: John Aristotle Phillips. Thank you, John. I appreciate it.

PHILLIPS: Thank you.

SMERCONISH: More social media reaction right now. What do we have?

He was right. He could shoot someone on Fifth Avenue and not lose a vote. Truly amazing.

Erick Aubrey, at least when it comes to the nomination fight, that seems to be the case. And by the way, not that it ought to be a factor, but you have got to believe it has entered the mind of the Fulton County D.A. Fani Willis that if she indicts him, like those numbers could go up even higher.

We'll see. Time will tell. And Jack Smith still seems to be aggressively pursuing other leads. So, there could be multiple indictments still to come.

I want to remind you, make sure you're answering this week's poll question at Smerconish.com. It pertains to homelessness. Which is more cruel and unusual, fining the homeless or leaving them alone?

Still to come, as soon as the Supreme Court put an end to affirmative action in college applications, a lawsuit was filed to end legacy admissions at Harvard. I get it. But I'm also wary of ending the practice and I'm going to explain.

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[09:40:41]

SMERCONISH: And now an endorsement of legacy college admissions from an admittedly 61-year-old White male suburbanite former fraternity brother. And perhaps if I'm acknowledging all of my own stereotypes, I should add that I am bald.

No sooner had the Supreme Court put an end to race conscious decisions in college applications, then legacy admissions became a fresh target. A complaint was filed by Lawyers for Civil Rights, a non-profit in Boston on behalf of Black and Latino community groups in New England, alleging that Harvard's admissions process violates the Civil Rights Act.

In a press release, they noted -- quote -- "Nearly 70 percent of Harvard's donor-related and legacy applicants are White, and they receive a substantial boost based on their status. Donor-related applicants are nearly seven times more likely to be admitted than non- donor-related applicants, and legacies are nearly six times more likely to be admitted."

Some college heads have defended the practice of giving an edge to relatives of alumni as engendering a sense of family about the school. At Duke University, the campus newspaper recently found that 22 percent of the freshman class had parents or siblings who had gone there. In March of 2022, Duke's president Vincent Price said in response to a faculty question, "We're an institution that was made in a family, the Duke family. The idea that you would ban legacy preferences, or ban any particular factor as a consideration is troublesome."

Similarly in a 2020 piece in Real Clear Education, then NYU senior, Anthony DiMauro, wrote this. "I'm not a legacy admit. My parents are blue-collar workers, and my dad only attended classes at a state college. But I felt the benefits of keeping legacies around at my school." DiMauro noted that the engagement of legacies extends beyond donations. "Multi-generational families often have a stronger connection to an institution, than say a first-generation student who doesn't have a family connected to the institution." He wrote.

And he's right. I was once a legacy admission to Lehigh, where my father had obtained a master's degree, and my brother graduated four years ahead of me. I probably needed that boost to compensate for mediocre SATs. It all worked out for me. I got my academic act together largely because my professor David Amidon who served as a mentor and I ended graduating Phi Beta Kappa.

Well, last month I attended reunion weekend where my own class celebrated the 39th anniversary of our graduation. My fraternity Zeta Psi had a nice turn out notwithstanding that we've since been booted from campus. And even though it wasn't a milestone year like next year our 40th will be. By the way, that is me with my fraternity roommate of three years, Albert Manwaring, Army Ranger, in the room where we once lived.

Well, here's something that I observed. A high number of my classmates who were present for the 39th shared stories of their children, who similarly graduated from Lehigh. Yes, legacies. I, by the way, was not so fortunate. None of our four children followed in my footsteps. In retrospect I think I oversold it.

But many of my classmates with alumni children are exactly the type who come to a 39th anniversary instead of waiting for round numbers like the 40th much less the 50th. And guess what? They write checks and they conduct alumni interviews and they serve as perpetual ambassadors for their beloved institution. In short, they give back. And that's the foundation of legacy admissions.

The point is legacy admissions provide a life blood, financial, emotional, cultural, for colleges and universities that provide opportunities for many, including minorities. And if legacy admissions now get their time in the barrel, harm will be suffered not just by families that look like mine, but also by the families of one-time affirmative action beneficiaries. Just when their sons and daughters might get the benefit from the familial aspect of legacy admissions it will be denied. And I think that would be a mistake.

Joining me now is Sanford Williams, lecturer in law at the UCLA Law School. He received a B.S. and an MBA from Cornell University and a J.D. from the University of Virginia School of Law.

[09:45:03]

Sanford, thank you so much for being here. I understand that you and your wife both went to UVA and so, too, your three kids. So, here's the question. Should that be a consideration when it comes to your grandchildren?

SANFORD WILLIAMS, LECTURER IN LAW, UCLA LAW SCHOOL: Well, first, thank you for having me. And I do have three grandchildren and I would love for them to be considered but -- and a short answer to your question I would say, if you asked me this question a week ago, I would probably wholeheartedly be where you are. But now, given the paradigm with the current affirmative action decision by the Supreme Court, I have to say looking for what's best for me, I would the love to have a benefit. But looking what's just and what's right for everyone, I don't see how I could advocate for legacy admissions when 70 percent of the folks roughly who benefit from legacy admissions are White and we have now taken out of the equation race in terms of looking at affirmative action.

SMERCONISH: OK. You must -- you must not have found my commentary persuasive, which is fine. But what of the idea that legacy admissions benefit everybody now, particularly in a post affirmative action world? And the gentleman from NYU who wrote that piece and said, I wasn't a beneficiary of legacy, but I shared some of the benefits of it because of the people who were.

WILLIAMS: I think that's exactly right. I wasn't a beneficiary of legacy either and my children have benefitted. And what you mentioned about multigenerational family being part of the fabric of a school, it's totally true from watching us win national championship in swimming, in basketball to reveling in the fact that we have a diversity of deans, athletic director and great president.

When great things happen at UVA, we have a common ground and a common bond. When tragedies happen, last year as well, we have a common bond and we can talk about things and those things tie us to the school. And also, donation is a life blood in many cases.

So, I think, it is very important. But again, looking at the whole panoply of things so to speak, once affirmative action is taken out of the mix, I think, it's really hard to justify having legacies being a beneficial preference.

SMERCONISH: There's a provocative essay in "The New York Times" today from Shamus Khan. And he wrote a piece saying that there's another aspect of legacy admissions, which is that the people who are beneficiaries or historically have been they are tied into networks. Oh, good. We have it. Let me quickly read.

"Legacy students got a leg up in the admissions process, but they were already on the path to success, just by virtue of being born into privilege. In fact, there's considerable evidence that going to an elite school like Princeton, as opposed to a less selective college, made no difference to their earnings."

Here's the key. "One group, however, got a big economic boost from going to elite schools, poor students, students of color and students whose parents didn't have a college degree. And that's because the elite colleges connected them to students born into privilege, the very kind of student that legacy preferences admit to such large numbers."

In other words, like a big part of college is the connections you make and the people that you meet. And now if we end legacy admissions and that network disappears, minorities, too, will be harmed because they are not getting access into those connections. WILLIAMS: Right. That's a great point. And I think I have seen that in my life and my children. I've seen that in their careers as well. And something you mentioned was really important, and I think from like 1970 to like 2010, the Black college enrollment, student enrollment quadrupled. So, there are tons of folks, like you mentioned, your classmates at school who is now like me that have kids who are going to school and they want to reap those benefits.

So, it's really hard for me to say, well, you know, maybe we shouldn't be able to participate in this because it's like the rug is being pulled out from under us and take it away once we can finally, you know, participate and partake in it. But, again, like I can go back to the initial point, looking at the paradigm now, affirmative action served that same purpose. And that fact that it's now removed is kind of -- means, you can look at other things. I think if affirmative action was still there the way it was before two weeks ago, it would be a different story.

SMERCONISH: Sanford Williams, thank you. Provocative. I really appreciate it.

WILLIAMS: Thank you for your time. And thank you for having me. I really appreciate it.

SMERCONISH: You got it. More social media reaction. What do we have, Catherine? Did I persuade anyone?

Mediocre White man with success and status already in hand wants legacy protections to remain. What an original thought.

Hey, Deckstervision, did you even hear the case that I was trying to make? I acknowledge, you know, the legacy benefits that were provided to me. But I'm paying it back. And those who go to a 39th anniversary instead of waiting for the 40th are the type who similarly are so connected now to that institution because their grateful for what it did for them in a way that others probably wouldn't be.

Still to come, more of your best and worst social media comments. And we will give you the final results of the poll question from Smerconish.com. By the way, make sure you're registering for the free newsletter when you get there. You'll love it.

Which is more cruel and unusual, fining the homeless or just leaving them alone?

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[09:54:22]

SMERCONISH: Let's see what we've established thus far this week. Number one, that cities need the power to deal with their homeless populations, both in the best interest of the cities and everybody else and the homeless community. Number two, that it's OK to give a platform to the Great Barrington Declaration and people like Jay Bhattacharya. Combat them with information not with censorship. Number three, that Donald Trump had a good week politically speaking and if that's the case then we ought to say so. And number four, that legacy admissions need to be kept.

Now, here is the poll results from Smerconish.com. What do we have?

[09:55:02]

Twenty-two thousand saying two-thirds fining the homeless is more cruel and unusual than just leaving them alone. OK. Then people like the outcome of that Ninth Circuit case.

Catherine, what do we have in terms of social media reaction to this week's program? You just gave a megaphone to a -- to bullshit. Masks don't work? The vaccines don't work? Lockdowns weren't effective?

What's next? How many Jews actually died? If you don't push back against misinformation, you're actively spreading it. Do way better.

Hey, guess what, M -- and I just gave platform to you to push back against every one of those things and therefore the playing surface is level. And the answer is not to say, oh, Facebook, take that down. Twitter, take that down. CNN don't tell us that information.

No, it is to combat it with opposing information and points of view just like yours. So, thank you for helping me to illustrate the point that I was trying to make earlier in the program. I will see you here next week.

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