While I certainly wouldn't except Berger to know the difference between the two situations I know that you're smart enough to identify the difference - especially with a law degree JHMD.
Berger has a law degree. There are people---even lawyers---who disagree with you. This will be good to know as you enter the next four years of your law school experience.
Eta: Taking your usual and unwarranted condescension at its face value, do you even agree with you? You don't think that Constitutional protects you from discrimination---to hear it told in this case, done with surgical precision against AAs----from access and entrance into public buildings and places of public accommodation? That's an odd little argument for a person with a law degree to make.
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