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- [00:00]
Mike Pesca
For a long time, companies treated their learning programs like overhead. Nice to have, easy to cut. Not anymore. With tech, AI and skills evolving fast, learning isn't just about HR or mandatory compliance. Learning is a competitive advantage. It's how you keep up. Learning is how you enable sellers, onboard talent, educate customers and scale faster. It's how you act, adapt and evolve. And at Docebo, learning is what we do. So for learning that never stops sending, start with do do. Never stop learning. We're lost. I'm going to pull over and ask that man for directions.
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Hi there.
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We're looking to get to the campground.
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- [00:42]
Kenji Yoshino
Let me get my phone out.
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Mike Pesca
How are you getting a signal out here?
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T-Mobile Advertiser
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Kenji Yoshino
We're getting the same great signal as
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Mike Pesca
The okay, here's those directions.
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Actually, can you point us in the direction of a T mobile store?
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T-Mobile Advertiser
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Mike Pesca
It's Monday, February 23, 2026 from Peach Fish Productions. It's the gist. I'm Mike Pesca. I don't have to tell you what happened over the weekend. Of course, AIPA has been struck down as a justification for tariffs and in doing so, it joins Mohila as another recent instance where the court that's not an emergency. The AIPA Mohela transition has been quite profound and as you know, everyone's been talking about AIPA and Mohila. Wait, what language is this? It is the language of scotus. Scotus by way of AIPA and Mohila, of course. The International Emergency Economic Powers act, which Donald Trump invoked to justify sweeping tariffs under a claim of national emergency. And the Supreme Court, two thirds of it said, no, that doesn't work. Mohela, of course, I'm going to say of course, but just join me here. The Missouri Higher Education Asian Loan Authority, which sat at the center of the student loan case during the Biden administration. That case hinged on the Heroes act. And I'm not going to spell out what the heroes meant. But it wasn't just that people who wanted their student loans forgiven were heroes. Again, the argument turned on an emergency. Was it really an emergency? Could the executive use a claim of emergency without clear congressional authorization? Now, because of IP and Mohela, Judge Gorsuch was making the claim that all his other colleagues besides Amy Coney Barrett are hypocrites, at least to some degree. Cuz some of them said mohila, perfectly fine, we're good. And but those also said you're Alito's, your Thomases, your Brett Kavanaugh's ipa. That's fine also. Whereas the three liberal justices said ipa, no way. Mohila, you got a good point. And you might remember, as we've chronicled on this show that many legal experts have now, it was never about AIPA or Mohila, no matter how much AIPA and Mohila dominated the discourse and the conversation and news coverage in your own brain. It's about one thing, one thing only. And listen to me now, because I'm a legal expert. This is me channeling the legal experts. This is what you need to know. The Supreme Court has become a rubber stamp for Donald Trump. That's all it is. They're not engaged in jurisprudence. They're engaged in power, raw power. And the word used to accompany this description of the court illegitimate. You should know. Let's go forward thinking the Supreme Court is illegitimate. So in the spiel we're going to check in on that what the purveyors of the Supreme Court is illegitimate, arguing now that their preferred result in this case came about Supreme Court that's illegitimate sometimes gets it right. I don't know. We'll check it. I don't know. Maybe the court just defined emergency a little different from you did and in this case, quite different from Donald Trump did. And listen, I'm going to help you. I'm not even going to get into Covid mandates or West Virginia v. Epa. IPA and Mohila, they've come to have not defined us, at least orient us points around which we use a signpost for our jurisprudence. Or maybe just our latest edition of Duolingo on the show today like I promised, who updated their priors since I bar. But first, we have an esteemed NYU professor and his colleague also who teaches at the NYU School of Law. The Melcher center for Diversity, Inclusion and Belonging is at the center of our discussion. We'll be joined by David Glasgow, who's the executive director, and Kenji Yoshino, who is that esteemed professor. The Chief Justice Earl Warren, professor of Constitutional Law. They've written a book which looks at what happened to DEI and tries to reclaim the worthiest parts of those initiatives or that maybe you could say that apparatus. The name of the book is How Equality Wins A New Vision for an Inclusive of America. And we do get into it with Kenji Yoshino and David Glasgow. Up next, Let me tell you what HIMS can and can't do. It can't do the very difficult task in the bedroom of folding a fitted sheet. No one can. Science can't. Math can't. But what it can do is provide a solution to to ed. ED doesn't mean your love life is over. It could mean you're just getting started. If you get personalized treatments through HIMS and you could access personalized prescription treatments if prescribed. They offer access to options ranging from personalized products to trusted generics that cost 95 less than brand names if prescribed. It's not a one size fit fits all thing. It doesn't forget you in the waiting room. It's your health and goals put first with real medical providers. Think of HIMS as a digital front door that gets you back to your old self. To get simple online access to personalized affordable care for ED, hair loss, weight loss and more, visit hims.com thegist that's hims.com thegist for your free online visit hims.com the gist featured products include compounded drug products which the FDA does not approve or verify for safety, effectiveness or quality. Prescription required. See website for details, restrictions and important safety information. Actual price will depend on product and subscription plan. So let me tell you about Claude. It is a miracle in your on your associated with your computer but also affiliated with with you. So as you know, I do the Gist list where I scan the web for stories and I use Claude to build a tool that doesn't do it for me. There is discernment but it puts choices from all these leading magazines and all these not leading but like trailing magazines where I find the best stories. And this was an amazing achievement that I couldn't have done without Claude. Claude is the AI for minds that don't stop it good enough. It's the collaborator that actually understands your entire workflow and thinks with you. Whether you're debugging code at midnight or strategizing your next business move. Claude extends your thinking to tackle the problems that matter. Claude Code is great. If you're a developer or you're really good at what they call vibe coding, Claude Code will vibe with you. Truly Agentic coding this is Claude Code. It's not just another coding assistant. The frontier of agentic code handles product wide refactors while preserving your coding style and showing its work. It's really important to know why it did what it did. Ready to tackle bigger problems? Get started with Claude today at Claude AI the Gist. That's Claude AI the Gist. And check out Claude Claude Pro, which includes access to all of the features mentioned in Today's episode. Claude AI/The Gist Ever notice how ads
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DI was dealt, if not a death blow then a serious set. Back during the Trump administration and before. First came a landmark Supreme Court ruling against the use of DEI in college admissions. And then the Trump administration came in and pretty much laid waste to the entire apparatus. Well, a new book tries to reclaim the goals of DEI with a little self examination and a little rebranding. It's authored by Kenji Yoshino and David Glasgow, who are the Executive Director and the Faculty Director of the Meltzer center for Diversity, Inclusion and Belonging at nyu. The book is called How Equality Wins A New Vision for an Inclusive America. Excited to speak with you gentlemen. Thanks for coming on.
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Kenji Yoshino
Thanks so much for having us.
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David Glasgow
Thanks for having us.
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Mike Pesca
So it is clear that the book is a practical guide for the people who are who believed in the goals and also the I'll use the word methods or maybe apparatus of dei. But before we get there, when I saw that the name of the book was How Equality Wins, I said to myself, well that's a rebrand right there. And I also said to myself, I think a few years ago it would have been titled How Equity Wins. But just that very fact that the conversation or your conversation shifted from equity to equality is kind of telling. And Kenji, I'll start with you just so our listeners understand the distinction of your voices. Why that choice?
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Kenji Yoshino
Yeah, well we named our center the center for Diversity, Inclusion and Belonging avoiding the term equity. So I think we can flash our creds and saying that we never believed in the word equity as a useful word. Because I think when people hear the word equity, regardless of what you believe the word means, to many it conveys this idea that there's a sameness of result, that no matter where you start from, we're going to insist that you get to the same destination. What we found was that when we talked to people, if we use the word equity, we would have to spend 20 minutes discussing what the term actually meant. Whereas if we use the term substantive equality or organizational equality, people would be completely comfortable with it and we'd be actually able to have the substantive conversation. I think exactly the same thing is happening with DEI where many people hear DEI and they think unfairness, you know, people who are unqualified being shoved into positions or elevated into positions that they don't deserve. Whereas if you say actually what we're all for as Americans is equality and fairness, removing biases, not this idea of we're giving unqualified people ramps up to a level playing field, but rather the idea that the playing field is in fact level. So our mantra is talent is everywhere, opportunity is not, and equality is what closes a gap.
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Mike Pesca
Right, And I agree with you. I go even further and say that one of the reasons that people looked at DEI with that gimlet I is nested in between the diversity and the inclusion is the equity. The E stood for equity. And I always thought that the best case scenario, the fairest reading of it was something that you said. It was just very hard to exactly communicate. I thought there was another use of equity, which sometimes reflected the shape shifting nature of the word, that activists could portray it as one thing to one group and one thing to another. When you're dealing with words without real definitions, and I know that diversity and inclusion are subjective, but they can also be measured in a way equity is much, is much different. But David, so if we shift or if you shift to equality, then doesn't that anticipate one of the things your colleague Kenji was saying, that it doesn't mean you're trying to communicate. You don't mean in equity of result, but how do you make sure that you're not trying to give the impression that you believe in a quality of results?
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David Glasgow
Yeah, well, you know, this goes back to a meme that I'm sure you and many listeners have seen where there's. It's the baseball park, the baseball meme. I hate this baseball meme of the kids and the parents standing on boxes trying to watch a baseball game. And you know, if they all have the same size box that's meant to be equality and then if they all have different size boxes to enable them to watch the game, that's to meant equity. Well, I just fundamentally reject that distinction between the two concepts. I think what we're really striving for is equal opportunity for everybody. Now of course that itself is a complicated term about what we mean by that, but it's as Kenji said, it's about creating fairness so that somebody's race, their gender, other aspects of their identity are not getting in the way of their ability to succeed, whether that be in college admissions, in a workplace, in another institution. We're trying to actually create the kind of merit based decision making that opponents of DEI often say that. Therefore we think that it's actually more on our side to kind of create that playing field.
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Mike Pesca
When equality was not just the buzzword or the watchword, but the actual goal. I do think Americans were more on board when there was an eooc, an Equal Opportunity Commission. There wasn't as much objection as when there was DEI and DEI being involved in many aspects of public life. But, and either of you take this and now everyone knows your voice, is it a better way to express the same goals and tactics or are you posing a significant or at least tweak from when the E stood for equity, going for equality? Go ahead. Either of you could take that.
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Kenji Yoshino
I think one of the wonderful things about the word equality is that it locates the practice in a much deeper American tradition. So I could argue that the entire practice of this nation from its founding has been equality. So we were created by a small band of white men who were propertied. And every generation meant that who counted as part of we the people expanded because of equality. So when people sort of tear their hair out and say this is the worst thing that's ever happened in America with regard to equality, I kind of want to hit the pause button and say, well, let's look at American history. We've had slavery and Jim Crow. We've had coverture and the legalization of domestic violence. We've had the criminalization of gay identity, institutionalization of people with disabilities, the internment of the Japanese and so on and so forth. And every single time, Mike, equality has prevailed. We've always chosen to be a bigger, more encompassing we the people. Sometimes it took longer than others. We're in a not great place right now. But we both believe that ultimately the value of equality will prevail. And that's one of the Reasons why we put it in the title of our book.
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Mike Pesca
Right. But my question is, are you suggesting that the movement changes to embrace a goal of equality? Not just a word of equality, but a goal of equality? How would that change what DEI had been doing when equity was the goal?
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Kenji Yoshino
I think in several ways. So one of the big ways is that we say we move from lifting to leveling. And I want to be really honest and just cop to the fact that David and I are both supporters of modest forms of affirmative action, which would be a form of lifting. So we're not saying move from lifting to leveling because it's always a better strategy. We're saying do it because the law now requires that. But lifting would be what we were talking about earlier, which is that ramp up to the level playing field. Saying we're going to give you a bump or a plus or an easier ride to the playing field because you have certain demographic characteristics and because groups based on that demographic characteristic were disenfranchised in the past or continue on to the present. Whereas a leveling strategy says, we're not going to do the ramp anymore, let's get rid of the ramp, but let's make sure that the playing field is absolutely level. And that's the shift that we're arguing for. It's a shift in emphasis away from lifting dei, which is a form of dei, to leveling dei, which is let's remove bias from across the board. If I can just give you a really crisp example to land the plane,
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Mike Pesca
not only can you. That was my follow up question. Yes. Give me two examples. Give me an example of what you won't be doing because it was lifting. And give me an example of what leveling is. Go ahead.
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Kenji Yoshino
So in 1971, 5% of the top five symphony orchestras in the United States were women. And the orchestras could have responded in one of two ways. So the lifting strategy would have been to say, we're going to do affirmative action for women. So we are going to give these auditions and then give people scores, and then we're going to give women a bump, like we'll give them an extra five points. Right. In order to make sure that women are represented. That's lifting. That's what we're no longer doing. Leveling would be what they actually did, which worked incredibly well, which was to say we're going to have everyone audition behind a screen so that people cannot tell the gender of the people who are auditioning. If you can't discriminate between two people, we say you can't discriminate against one of them. This actually led to symphony Orchestras rocketing from 5% to 35% within a very short period of time. 2016 was when the study ended, so they were at 35% then. That would be a very good example of a leveling strategy then. People often say, well, that doesn't really work in professional white collar environments. I have to actually meet people in order to evaluate them. We're like, sure, that's fine, but there are lots of leveling strategies that don't require you to anonymize your assessment. You could have structured interviewing, you could have unconscious bias training, you could have any number of measures that would partake of this leveling strategy rather than falling back into the lifting practice.
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Mike Pesca
But after the blind auditions were taken up massively across the board and we saw a huge amount of a huge increase in females who are being hired in orchestras, there was still the movement to use dei, and different symphonies were sued to allow or allow for a DEI consideration even after the blind audition. So would that sort of thing be disallowed? Well, probably would be disallowed under the law, but would it be frowned upon in your framework?
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David Glasgow
So my view, going back to what Kenji said before, is that I do support, at a normative level, efforts to go beyond the pure kind of levelling approaches to try to engage in, as Kenji mentioned, modest forms of affirmative action. It's just that ever since this supreme court decision in 2023 ending affirmative act action, those kinds of practices are significantly riskier for organisations to adopt now. So part of the book is saying, look, rather than just railing against reality and saying, let's just keep pushing, pushing, pushing, even if it's incurring significant legal, political or cultural risk in doing so. Let's cop to the fact that we're stuck with this conservative super majority Supreme Court for many years to come, certainly past the expiration date of the Trump administration. So we need to find practical strategies for advancing equality even within that constrained environment. And that's where the kind of leveling approach comes in.
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Mike Pesca
So to be clear, just from the blind audition example, which you not only note in your book, but you note how everyone in the field yells at you, don't tell me about blind auditions anymore. I can't be blind in my job of evaluating students who are right there in front of me and I have interactions with them. Fine, noted. Their is the many examples of symphonies being sued even after blind auditions. Not that the blind auditions didn't work well, but just that the result was a underrepresentation, maybe compared to the general population of musicians of color. And then I'm looking at Symphony Dawg. There are arguments rethinking blind auditions just because blind auditions didn't produce the result we wanted. I guess it's a multi. Multifactorial question. It seems like, David, you're saying that you would support an orchestra still making sure that there was a mix of its players that reflected the general population. But you're also saying that you're aware under the law that can't happen anymore.
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David Glasgow
Yes, and in fact, many countries abroad still do engage in measures that can be as strong as quotas, or if not outright quotas, targets or representation goals that are required by law. My home country of Australia has done that recently with respect to gender. So, you know, from a normative standpoint, I think those kind of measures are defensible. It's just that we live in a country and with a Supreme Court that has made that significantly harder to do legally.
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Mike Pesca
But there are many parts in those. Sorry, Katji, you were going to say.
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Kenji Yoshino
I was just going to say that all is not lost even if we take lifting off the table. So I think you're asking a really good question about people of color being underrepresented and what do we do if we live in an only leveling world? Our answer to that in the book is if we were running the zoo, we would say use both lifting and leveling to help those people of color. But given that lifting strategies are now off the table, what can we do? And our answer is, if you aggressively engage in leveling at every stage in the person's development, then we think that you would get an equality of results. Our strong suspicion about why people of color are underrepresented in those symphony orchestras through blind auditions is because leveling practices have not been imposed in conservatories in secondary school and elementary school, even with regard to musical opportunities that people of color have been given. If we were really serious about.
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Mike Pesca
Let's be. Sorry to interrupt. I don't want to use the vague phrase. I think many Asian. Many orchestras are overrepresented in terms of Asian Americans, and maybe even they reflect the community's overall makeup in terms of people of color and white players. But the question really is black and indigenous, which are underrepresented. Sorry, go on.
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Kenji Yoshino
Yeah, totally fair. But with regard to that, you know, population, if we had leveling practices for black, indigenous, maybe to a certain extent, Latinx, you know, individuals, and we leveled from, you know, Cradle to, you know, that audition process, then we would be absolutely fine, in our view. So the leveling strategy gets you there. It's just a much heavier lift.
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Mike Pesca
So most of us aren't bassoonists, but we navigate the world, and there are points where we could get education or get hired. At what point do you. Does the leveling level off? So can you level two? Can you level in elementary school and high school and college and graduate school and the workplace? And at some point, should we say, there's been a sufficient amount of leveling? Now at this point, something else is going on, or we can no longer intercede to get the result we want?
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David Glasgow
I think that leveling can and should be implemented all the way through because it's about removing bias to create fair systems. So even if you think at the most senior levels within an organization, once someone's graduated from educational institutions and they're on, say, the promotion track at their company, levelling just means creating a fair, structured promotion system that has transparent criteria that everyone is measured against, rather than using things like bumps or preferences or quotas to ensure that you get the result that you want. So I think most people can and should support creating those kind of structured, debiased systems for promotion. And therefore, I would say it can be run all the way through, from cradle to grave, so to speak.
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Mike Pesca
Is that different from lifting?
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Kenji Yoshino
I think it really is. So to give you a more kind of, you know, as you say, one of my colleagues, I would literally like, you know, hit you over the head with a casebook if you mentioned the orchestra screen study again, because I got to meet my students at some point, so I can't evaluate people behind an orchestra screen. But I always respond to him. With my buddy, Shelly Correl, who's a sociologist out at Stanford, she has studied performance evaluations, and she's noted that women and men are treated very differently. Women are graded to just shuck it down to the bone on the basis of performance, whereas men are evaluated on some mixture of performance and future potential. So men get advantaged by that because people just give them an extra bump. So she said to me, like, look, I also oppose this Supreme Court opinion, but the silver lining in all of this is that it may lead to more systemic and kind of consequential reform. Because historically, what happened when a company said we don't have enough women in the C suite or on our board was that they would engage in lifting that would lift up qualified woman. And that was great for that woman. That was great for that board, but it wasn't great for all the other women who are being evaluated unfairly through these performance systems. So yes, kind of leveling all the way. And leveling can get us there, as David said. Right. And there's no reason why we should sort of surrender on leveling at any juncture to the to the extent that we believe in fairness in our workplaces or our communities more broadly.
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Mike Pesca
And we'll be back tomorrow with more of Yoshino and Glasgow. And in the second part of our interview, things get a bit more contentious. But I should say we leave with, if not an equal footing than an equal understanding of what challenges we face. How equality wins tomorrow. Once more on the gist,
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- [28:22]
Mike Pesca
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- [28:52]
and now the shpielipa. The Supreme Court ruled against Donald Trump and his use of supposed emergency powers to impose tariffs, and therefore, you might think even the Court's most dire and dedicated critics would say, well, they got that one right or not. So to summarize where we were on many of the most learned people and their analysis of the Supreme Court, I will quote a headline written by one of the most respected judicial professors today, Samuel Moyn. It's time to accept that the U.S. supreme Court is illegitimate and must be replaced. That was last year. But Moyn has not come down from his view. Moyn is at least intellectually consistent. He's a gigantic critic of most everything that America does. But he's smart and he writes well, and it's fine to have some Cassandras like him in the academy. My problem is if most people go around thinking the court is illegitimate, they might treat the court as illegitimate. And Donald Trump or elected officials who want to act with illegitimacy and have illegitimacy in their hearts will take advantage and trample over our institutions. I think the court often arrives at rulings that I disagree with, knowing what I know about how the law should be applied. Sometimes egregious rulings, but other times, those criticizing the court and specific rulings as illegitimate are criticizing what I think are pretty logical applications of the law. So I've said this before. I think there are six conservatives on the Supreme Court, and I think at least three or four of them are just conservatives who most liberal critics of the court do not like and would not like under any circumstances. This Kavanaugh guy, by the way, is beginning to be a little squirrely in my eyes. But let's check in on those who said the courts are irredeemably illegitimate. I will remind you of a few quotes Norman Ornstein towards of the American Enterprise Institute tweeted towards the end of last year. It is not just the rulings the Roberts Court is making. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the court. Blown it up, can't get it back, can't piece it together. So what of this ruling which was, in Ornstein's view, quite legitimate? Here was Ornstein talking on his podcast today. So we're still dealing with a Supreme
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Kenji Yoshino
Court that teeters on the edge of utter illegitimacy. And this court actually divided three, three and three in some ways. But fortunately, six of them understood that this was a bridge so far, so too far away from the law and the tradition of the country.
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Mike Pesca
And I suspect a little bit of
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Kenji Yoshino
it might have been, let's save Donald
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Mike Pesca
Trump from himself, because he's sending us
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Kenji Yoshino
into an economic abyss.
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Mike Pesca
All right, so Ornstein doesn't explicitly acknowledge or maybe doesn't even realize he has gone from it's destroyed to it's on the brink of destroyed, maybe from DEFCON 1 to DEFCON 1 and a half. Of course, implicitly in saying that it was destroyed is that he was wrong. When something's Blown up. You can't really get it back by one ruling anyway. Fine, he was a bit hyperbolic. Then there's Lael Littman, a big purveyor of the most dire and distraught analysis of everything that the conservatives on the court ever rule. But in this case, three conservatives joined the three liberal justices. So that's legit, right? No, says Littman, on strict scrutiny, that's corrupt.
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Kenji Yoshino
That is.
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David Glasgow
It is.
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Mike Pesca
Before we get into the deets, the
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top line is that the following principles
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and lines of reasoning remain strong.
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One, the president can't fuck with Supreme Court justices or Supreme Court justices. Emotional support, billionaires, investment portfolios. So were Sotomayor, Kagan and Jackson corrupt? No, they see things clearly. Lisa Graves was on this show arguing illegitimacy, an ongoing constitutional crisis. So what of a new data point that at least somewhat contradicts that point? She's quoted in the Guardian today. This ruling is not judicial courage. This is the Roberts court doing the bare minimum to rein in Trump's abuse of power. But, you know, even if we concede the point, she was saying that the Roberts court wouldn't do the bare minimum to reign in Trump. That was her old thesis. Then there are the consistent Mark Joseph Stern in Slate, who in the past has spoken of illegitimacy, said today that it was a good ruling. He called Roberts opinion, quote, withering, confident and genuinely encouraging. Ooh, let's keep the optimism train going. Professor Stephen Vladik, who has been on the show talking about the shadow docket, not being sunny about that, says this was a good ruling, quote, that in my view, a very good thing, both on the merits of the specific legal question presented in the case and as evidence. There are at least some lines this court won't cross, even in cases arising out of Trump administration policy policies. I agree with that. That, to me says there's at least a scintilla or a semblance of legitimacy to the court. Let's hold on to that and let's leave on a high. No, no, I give you the most ridiculous of the it was illegitimate. It is illegitimate. It will always be illegitimate arguments Josh Marshall in his Talking Points memo said of the ruling, which he liked, said it shames the court because it was done at the wrong pace, which is the same exact, deliberate pace they issue every other ruling of its kind. Here's a quote. Today's decision is an indictment of the court. These tariffs have been in effect for almost a year. They have upended whole sectors of the US and global economies. The fact that a president can illegally exercise such powers for so long and with such great consequences for almost a year means we're not living in a functional constitutional system. If the Constitution allows untrammeled and dictatorial powers for almost one year, massive dictator mulligans, there is no constitution. I mean, do we have to remind them how long the internment of the Japanese or Plessy versus Ferguson or other unconstitutional means were pursued? Then there is no constitution. Except there is a constitution. It was interpreted the other day by the Supreme. But it's a constitution. It's not a booth review in the last two minutes of an NFL game. It's not a speed camera where they'll send you a notice the next day. It's a process, a deliberative process that relies on nine robe justices legitimately doing their jobs for the most part. And this time, most of them did. And that's it for today's show. Cory Wara produces the gist. Kathleen Sykes does the Gist list. You gotta pay for it today, but you know, we give a free one at mikepesca.substack.com Jeff Craig runs our Instagram accounts and he's still running the Tick Tock account. Tick Tock, you don't stop. Little Trumpy there. Don't stop. Everybody's saying you don't stop. Ben Astaire is our booking producer and Michelle Pesca proceeds with due deliberation and quite a bit of legitimacy. No ropes, uproot. Do Peru. And thanks for listening.