So the Supreme Court has handed down a decision rejecting race-conscious admissions policies for universities. See if you can guess which of the following headlines was from Fox News, and which was from NPR: “Supreme Court rejects affirmative action in ruling on universities using race in admissions decisions”
Why not have a program of giving first place in line to black people to public restrooms or water fountains or busses, on the rationale that black people were deprived in the past of timely access to services in general? Why not have affirmative action in sports, so that black people are ten times as likely to receive a spot on a soccer/lacrosse/cross country/track/etc. team with the same qualifications as a white person?
I do not really understand why people support AA but then reject things like quotas. I don't really understand the principles that people appeal to when justifying racial discrimination in AA but not racial discrimination generally. Also, I don't know why people don't also support giving tax benefits to black people. This seems like (1) a much more direct way of benefiting black people (especially if you think economics are driving all of these disparities) and (2) would actually disproportionately benefit poor blacks. I honestly think support for AA is status quo bias.
Even if AA did in some way "undo" the effects of past racist policies, that still wouldn't make it justified. At best, AA would be neutral, since it would undo a past racist policy and replace it with a new racist policy. This would be like lynching a white person today to undo a lynching of a black person in the past. Even if we could "undo" alleged injustices in this way, that wouldn't justify imposing new injustices on innocents today.
The Fourteenth Amendment interpretation here is, in layman’s terms, that these publicly funded universities (read: basically every university in the country) are required by law not to discriminate by race. Courts have interpreted this ban on racial discrimination to be equivalent to the one that the Fourteenth Amendment sets on states. “Laws” often refers to all actions by the government: for example, while the First Amendment says “Congress shall pass no law” to restrict freedom of speech, if a police officer beats you up for saying you don’t support the President, that’s still a First Amendment violation. Thus, “equal protection of the laws” means that States will not discriminate on the basis of race unless if they meet strict scrutiny. Strict scrutiny requires a compelling government interest and that discrimination be narrowly tailored to that interest. For example, if prison guards expect a race riot, they can segregate prisoners temporarily by race to avoid direct human harm. This requirement is an incredibly difficult one to meet. Racial discrimination laws extend this to universities, placing strict scrutiny on any racial discrimination they participate in. The Court ruled that their current affirmative action programs do not meet the incredibly demanding standard set by the law, and are thus illegal.
I'm curious about the new vogue for Diversity Statements in academia. I seem to recall a great outpouring of revulsion back in the 1950s against so-called Loyalty Oaths, chiefly by academics and other liberal intelligentsia. How times change!
I'm not sure why you are confused with Roberts' focus on the 14th amendment. 1) The suit alleged both Title VI and the 14th amendment were violated, so I don't think he could avoid the issue. 2) The previous rulings such as Bakke and Grutter dealt with the issue in terms of the 14th amendment, and this case seemed appropriate for addressing the 25 year limit for race-conscious admissions. I also think that his exposition on the history of the 14th amendment being ignored in statutes is relevant.
How come some people feel so strongly about past wrongs, and group identitys?
Ive seen several people that talk about past atrocities against native americans or blacks (that i think happened and were terrible) and then go to “therefore me must right that wrong, either by redistributing or by punishing current represntatives of the other group”
Which always confused me, even when i were guilty about ancestors crimes: i have no relationship to them? I do somewhat get the idea that if i have something unearned that i own, that its good to redistribute it, but they often seem adamant about way more then that.
Its a weird identification with collectivism, and history. If something has good consequences i can see why i should morally do it, but yo do something because my great great great great great great great great great grandfathered murdered someone seems bizarre
Do you think that universities care about offering racial preferences? Or just appearing to take a side on the issue?
Usually, if you primarily bcare about some goal you'll hold the goal fixed but consider different plans to achieve it and take care to choose the best. But, with affirmative action it's reversed and the mechanism seems to be the fixed point that the justifications change to fit -- with no consideration of whether the policy is even an efficient way to that end.
So will they really try to evade the ruling or just announce loud opposition?
The reason the decision focused on the Equal Protection Clause is explained in a footnote in the opinion. Essentially, the Supreme Court equates violating the EPC with a violation of Title VI. I agree with you (as does Justice Gorsuch) that it would make more sense to analyze this case using Title VI's clear language.
Here's the footnote (n. 2):
"Title VI provides that '[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.' 42 U. S. C. §2000d. 'We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.' Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself. "
This blog post from 2015 isn't directly related to the current legal decision, but I think it's still pertinent and important to revisit (apologies to Mike if he's done this or looked at some of this literature and discussed it somewhere already). If affirmative action simply pays lip service, or worse, hides in that lip service, the statistics that it seems to have backfired (at least as of 2015), then it potentially makes the education and economic divide even greater.
"Affirmative action is before the Supreme Court again this week [2015], as it rehears arguments in Fisher v. University of Texas. (I’ve discussed the legal issues in Fisher here.)
But perhaps the most important question about racial preferences is one that’s not directly raised by the case: do they even work? Do they help underrepresented minorities to achieve their goals, and foster interracial interaction and understanding on elite campuses? Or do large preferences often “mismatch” students in campuses where they will struggle and fail?
Scholars began empirically studying the mismatch issue in the 1990s, but in the past five years the field has matured. There are now dozens of careful, peer-reviewed studies that find strong evidence of mismatch ...." https://fee.org/articles/how-affirmative-action-can-backfire/
You say: “Only the most extreme voices on the left (wokists) and right (white supremacists) want to keep admitting and hiring people based on skin color.”
It’s interesting that you compare or equate Affirmative Action (AA) with the hiring practises of the extreme right (i.e., White Supremacists), which I’ll label, for the purposes of this comment, as AAx (i.e. the extreme right’s version of AA).
I’m against AA because I’m against discrimination, and I think AA, in practise, has the unintended effect of perpetuating the historical injustice that it seeks to resolve. However, I think AA isn’t motivated for the same reasons as AAx.
If I’m not mistaken (I’m not a polisci or history major study) but AA seems like a form of reparation for slavery. And, I think a strong case can be made for reparations (I’m actually for reparations). But AAx is motivated because of the false belief that minorities are inferior to whites. So your comparison seems like an equivocation. (Or perhaps I’m just misinterpreting your point, apologies if so).
But let me just try to make a case for AA. You see, the ability for someone who is seriously economically and socially disadvantaged because of the legacy of slavery, is that they cannot even apply for education on a level playing ground, as those who haven’t been blighted by such a legacy. Consider the emerging phenomenon of “teenage scholars”, whose well to do parents can afford the exorbitant fees to publish in academic journals (among other services like tutoring, etc). This practise is thought to be a way that rich families game the system to ensure their continued presence is felt in institutions of education, governance, etc.
Now, can someone disadvantaged by the legacy of slavery compete with that, when applying to a top university? I don’t think so.
What I think can be done is that when two applications are being compared, the reviewer could discount the “scholarly” publications of the “teenage scholar” and then compare the applications on a level playing ground.
Maybe that’s not exactly AA but I think that’s what progress would look like.
Why not have a program of giving first place in line to black people to public restrooms or water fountains or busses, on the rationale that black people were deprived in the past of timely access to services in general? Why not have affirmative action in sports, so that black people are ten times as likely to receive a spot on a soccer/lacrosse/cross country/track/etc. team with the same qualifications as a white person?
I do not really understand why people support AA but then reject things like quotas. I don't really understand the principles that people appeal to when justifying racial discrimination in AA but not racial discrimination generally. Also, I don't know why people don't also support giving tax benefits to black people. This seems like (1) a much more direct way of benefiting black people (especially if you think economics are driving all of these disparities) and (2) would actually disproportionately benefit poor blacks. I honestly think support for AA is status quo bias.
Even if AA did in some way "undo" the effects of past racist policies, that still wouldn't make it justified. At best, AA would be neutral, since it would undo a past racist policy and replace it with a new racist policy. This would be like lynching a white person today to undo a lynching of a black person in the past. Even if we could "undo" alleged injustices in this way, that wouldn't justify imposing new injustices on innocents today.
The Fourteenth Amendment interpretation here is, in layman’s terms, that these publicly funded universities (read: basically every university in the country) are required by law not to discriminate by race. Courts have interpreted this ban on racial discrimination to be equivalent to the one that the Fourteenth Amendment sets on states. “Laws” often refers to all actions by the government: for example, while the First Amendment says “Congress shall pass no law” to restrict freedom of speech, if a police officer beats you up for saying you don’t support the President, that’s still a First Amendment violation. Thus, “equal protection of the laws” means that States will not discriminate on the basis of race unless if they meet strict scrutiny. Strict scrutiny requires a compelling government interest and that discrimination be narrowly tailored to that interest. For example, if prison guards expect a race riot, they can segregate prisoners temporarily by race to avoid direct human harm. This requirement is an incredibly difficult one to meet. Racial discrimination laws extend this to universities, placing strict scrutiny on any racial discrimination they participate in. The Court ruled that their current affirmative action programs do not meet the incredibly demanding standard set by the law, and are thus illegal.
I'm curious about the new vogue for Diversity Statements in academia. I seem to recall a great outpouring of revulsion back in the 1950s against so-called Loyalty Oaths, chiefly by academics and other liberal intelligentsia. How times change!
I'm not sure why you are confused with Roberts' focus on the 14th amendment. 1) The suit alleged both Title VI and the 14th amendment were violated, so I don't think he could avoid the issue. 2) The previous rulings such as Bakke and Grutter dealt with the issue in terms of the 14th amendment, and this case seemed appropriate for addressing the 25 year limit for race-conscious admissions. I also think that his exposition on the history of the 14th amendment being ignored in statutes is relevant.
How come some people feel so strongly about past wrongs, and group identitys?
Ive seen several people that talk about past atrocities against native americans or blacks (that i think happened and were terrible) and then go to “therefore me must right that wrong, either by redistributing or by punishing current represntatives of the other group”
Which always confused me, even when i were guilty about ancestors crimes: i have no relationship to them? I do somewhat get the idea that if i have something unearned that i own, that its good to redistribute it, but they often seem adamant about way more then that.
Its a weird identification with collectivism, and history. If something has good consequences i can see why i should morally do it, but yo do something because my great great great great great great great great great grandfathered murdered someone seems bizarre
Do you think that universities care about offering racial preferences? Or just appearing to take a side on the issue?
Usually, if you primarily bcare about some goal you'll hold the goal fixed but consider different plans to achieve it and take care to choose the best. But, with affirmative action it's reversed and the mechanism seems to be the fixed point that the justifications change to fit -- with no consideration of whether the policy is even an efficient way to that end.
So will they really try to evade the ruling or just announce loud opposition?
The reason the decision focused on the Equal Protection Clause is explained in a footnote in the opinion. Essentially, the Supreme Court equates violating the EPC with a violation of Title VI. I agree with you (as does Justice Gorsuch) that it would make more sense to analyze this case using Title VI's clear language.
Here's the footnote (n. 2):
"Title VI provides that '[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.' 42 U. S. C. §2000d. 'We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.' Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself. "
This blog post from 2015 isn't directly related to the current legal decision, but I think it's still pertinent and important to revisit (apologies to Mike if he's done this or looked at some of this literature and discussed it somewhere already). If affirmative action simply pays lip service, or worse, hides in that lip service, the statistics that it seems to have backfired (at least as of 2015), then it potentially makes the education and economic divide even greater.
"Affirmative action is before the Supreme Court again this week [2015], as it rehears arguments in Fisher v. University of Texas. (I’ve discussed the legal issues in Fisher here.)
But perhaps the most important question about racial preferences is one that’s not directly raised by the case: do they even work? Do they help underrepresented minorities to achieve their goals, and foster interracial interaction and understanding on elite campuses? Or do large preferences often “mismatch” students in campuses where they will struggle and fail?
Scholars began empirically studying the mismatch issue in the 1990s, but in the past five years the field has matured. There are now dozens of careful, peer-reviewed studies that find strong evidence of mismatch ...." https://fee.org/articles/how-affirmative-action-can-backfire/
You say: “Only the most extreme voices on the left (wokists) and right (white supremacists) want to keep admitting and hiring people based on skin color.”
It’s interesting that you compare or equate Affirmative Action (AA) with the hiring practises of the extreme right (i.e., White Supremacists), which I’ll label, for the purposes of this comment, as AAx (i.e. the extreme right’s version of AA).
I’m against AA because I’m against discrimination, and I think AA, in practise, has the unintended effect of perpetuating the historical injustice that it seeks to resolve. However, I think AA isn’t motivated for the same reasons as AAx.
If I’m not mistaken (I’m not a polisci or history major study) but AA seems like a form of reparation for slavery. And, I think a strong case can be made for reparations (I’m actually for reparations). But AAx is motivated because of the false belief that minorities are inferior to whites. So your comparison seems like an equivocation. (Or perhaps I’m just misinterpreting your point, apologies if so).
But let me just try to make a case for AA. You see, the ability for someone who is seriously economically and socially disadvantaged because of the legacy of slavery, is that they cannot even apply for education on a level playing ground, as those who haven’t been blighted by such a legacy. Consider the emerging phenomenon of “teenage scholars”, whose well to do parents can afford the exorbitant fees to publish in academic journals (among other services like tutoring, etc). This practise is thought to be a way that rich families game the system to ensure their continued presence is felt in institutions of education, governance, etc.
Now, can someone disadvantaged by the legacy of slavery compete with that, when applying to a top university? I don’t think so.
What I think can be done is that when two applications are being compared, the reviewer could discount the “scholarly” publications of the “teenage scholar” and then compare the applications on a level playing ground.
Maybe that’s not exactly AA but I think that’s what progress would look like.