The Fischer case involves a white student who sought admission to UT and ran into their admissions policies which favored minority students. She sued claiming discrimination in violation of the 14th Amendment’s Equal Protection clause.
The case was heard by a Federal District Court and then appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit ruled in favor of UT. In reaching that decision, the Circuit Court relied on the Supreme Court’s decision in Grutter v. Bollinger which allows colleges to use race “as one of many plus factors” in admissions decisions. Basically, that ruling has been interpreted to mean that colleges cannot set aside places by race, but they can grant minorities extra points for their race provided that race is one of many different “plus” factors that can be awarded AND provided that race is not the predominant deciding factor. That's stupid.
“You can consider it, but you can’t base your decision on it” works out logically to X is true, but just not THAT true, and logically speaking, that’s nonsense. Morally speaking, this is nonsense as well. Either the use of race is acceptable or it is not. If it is acceptable then there is no reason to disallow its use. If it’s not acceptable, then it should not be allowed at all. And this attempt to allow its use, but not in any meaningful way, straddles the morality in such a way as to offend both sides.
When the Supreme Court agreed to take up the Fischer case, there was hope that the Court would finally kill this hypocritical doublespeak. Conservatives hoped the Court would invalidate all affirmative action. Liberals hoped the Court would endorse affirmative action. The Court did neither, however, which has the MSM universally saying the Court “punted” on the issue.
But that’s not accurate.
What the Court held was this: UT (i.e. the state) bears the burden of proving both a “compelling state interest” in causing diversity at their schools AND UT must prove that their method for achieving that goal of diversity is “narrowly tailored.” This is the standard “strict scrutiny” test for laws that violate fundamental rights like equal protection.
The Court then accepted the Fifth Circuit’s conclusion that UT’s goal of increasing diversity was a valid goal which stands up to strict scrutiny, i.e. the Fifth Circuit correctly concluded that UT had shown a compelling state interest in promoting diversity. BUT the Court rejected the Fifth Circuit’s reasoning on the second part of the test... whether or not UT’s policies were narrowly tailored. In that regard, the Court held that UT needed to show that under its plan to increase diversity, each applicant was still evaluated as an individual and not in a way that made an applicant’s race into the defining feature of their application. To do this, the Court held that UT must prove that is it “necessary” for UT to use race to achieve the educational benefits of diversity. “Necessary” in this case means this: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the education benefits of diversity.”
In other words, the school must show that it could not have generated diversity in any other way. The Court then sent this back to the lower courts for further evaluation in light of this new standard.
So what does this mean?
Well, for people looking for a bold pronouncement: affirmative action is dead/is fine! They were disappointed. They didn’t see that. And since it was sent back, the MSM seems to have decided the Court didn’t resolve anything. Hence, “they punted.” But that’s not true.
What everyone is missing here is that the Court has changed the standard for when race may be considered. In the past, the Court has held that race can be used as “a plus.” But now the test is that race can only be considered when there is “no workable race-neutral alternative” to create diversity. That’s a huge difference. Basically, before you could use race as a plus if you wished, now you need to prove that you can’t achieve diversity through any other means. And here’s the kicker: I can’t imagine a situation in which that would be possible to prove. For one thing, many schools already use alternate means of attracting diversity like setting aside places based on income level or by setting aside places based on geography (top X% of every high school in the state). Given that, how can a school ever argue that there are no workable race-neutral alternatives? They can’t.
What the Supreme Court has done here is kill affirmative action by leaving it in place but making it impossible to use. And in the process, they have killed affirmative action without anyone realizing that’s the case, which is a brilliant way to make a social change because no one protests something they don’t realize has happened.
So what happens next? My guess is that once college lawyers look over this decision, most will simply abandon race-conscious admissions programs and will switch to income or geography-conscious admissions programs. The ones who don’t will be challenged and will find that they can never prove what the Court requires to maintain their race-conscious programs. Thus, ultimately, affirmative action will vanish from college admissions.
Thoughts?
37 comments:
Hard to say ... I have found in the past, that when it comes to these matters, courts of a certain persuasion have found a way to ignore sound legal logic. I look at what Roberts did on Obamacare. Your guess may be correct ... and I do hope it is so. But I have also seen courts with a desire for a specific outcome, manage some tortured logic to rule differently than what we might think this decision said. I guess, I'll believe it when I see it.
Jed, The problem here is that advocates of affirmative action will need to find both a district court and an appellate court that will go along with them, and they will need to find a way to explain away the actions of places like the U of California which is already switching to income-based admissions to find diversity. And if they can do all of that, then they risk the Supreme Court stepping back in and creating a ruling that could wipe out affirmative action across the board.
Indeed, that's the real problem for them if they push their luck. If the court takes a principled stance against race-based rewards, then affirmative action throughout government will get wiped out.
So in every way, the path of least resistance for colleges will be to do something other than race-based admissions.
One unintended consequence of this, if it really does shoot down AA, is to lower the already low male to female ratio on college campuses. The song "two girls for every guy" will not just apply to Surf City anymore.
K, I know that feminists love to trumpet that as evidence of something about the rise of women, but they have misread the data. They wrongly assume that all schools are the same and all degree programs are the same. It's the same way blacks get more degrees than whites per capita, but somehow can't translate that into greater success -- it's because of the schools they pick and the degrees they pursue. Ethnic Studies at a third rate school just isn't the same as Biomedical Engineering at MIT.
As an interesting aside, the elimination of affirmative action and the related restrictions is actually leading to Asians taking over the California system.
Andrew,
Your analysis makes perfect sense. Since there's no way to appeal an SC decision and no way to counter a Supreme Court decision short of a constitutional amendment or changing the composition of the court (which given that justices serve for life, takes decades) why didn't the court just kill affirmative action outright?
Anthony, I think there are three possibilities:
Possibility 1. The court doesn't realize what it's done -- they genuinely think they just tightened up the standard a bit and they don't yet realize they tightened it to the point of choking it off. I'd say there's only a 5% chance of this.
Possibility 2. The court is more than just a legal organization, it also does politics, and that means it needs to be able to sell its ideas to the public. Wiping out Affirmative Action would be a wide-reaching political statement that the court didn't want to make, especially with their decision on the VRA coming at the same time. So they decided to take the low-key approach that would keep most people from realizing what they have done -- something which seems to have worked as I've heard no one talk about this yet (partially because they are busy screaming about the VRA decision and partially because they all immediately fell for the "punt" idea). Basically, the court made a political decision to slip this by us so that it wouldn't create a lightening rod for opposition. Instead, AA will simply fade away because it's become impossible to get approved rather than being officially wiped out.
I'd say the chance of this is maybe 10%. The problem with this possibility is that if this had been openly discussed, then one of the liberal justices would have spilled the beans.
Possibility 3. The court is a political animal. What happened here is that they couldn't get five justices to kill affirmative action outright and they couldn't get five justices to affirm the decision. So this sounds like a "compromise" meant to keep the other side from getting five votes and imposing their will... "agree to this and you both get something, refuse and I'll go with the other guys."
And I can see how both sides would think they got what they wanted. The conservatives basically tightened this up to the point of being impossible. Meanwhile, the liberals think they got a declaration that affirmative action is alive and well, even if it was made harder to obtain. And the swing vote, the guy who held up both sides, got the cover of being able to say he did both -- tightened it without ending it.
But in the end, I think the conservatives won this, even if that isn't clear yet, for the reasons I outline above. One of my jobs as an attorney is to find ways to help my clients do the things they want to do despite the law and I can tell you that if I was advising a client on how to get race-based admissions after this ruling, I would be hard-pressed to suggest a way around this. It's not technically impossible, but it's so close to impossible that I would advise a client not to waste their time and money trying to fight a nearly-impossible battle.
I think I'm beginning to understand the nature of the Roberts court. With this and the VRA decision now added to the Obamacare decision, a pattern of how this court deals with hot-button issues is emerging. This court is not going to give simple "yea-nay" responses--much to the chagrin of ideologues on either side--but it is going to hand down decisions that create pressure to move in a more conservative direction. This is how you get your way w/o creating backlash from the opposition and it's the shrewd conservatism I've been longing to see.
Speaking of law and stuff, the Court just ruled DOMA unconstitutional, but also said it lacked the standing to rule either way on California's Prop 8, preserving that state ban for the time being. (sigh) Half a loaf is better than none at all, I suppose.
T-Rav, 3/4 of a loaf. Reporters are saying DOMA was struck down, but it was only 1/2 struck down. The provision that remains standing says that states don't have to recognize gay marriages from other states. That part was unchallenged.
T-Rav, I haven't read the decision yet, but I wouldn't bet on half the loaf.
tryanmax, I think you're right. Roberts and the others know that when the court steps in and says "YES/NO" to controversial issues, they tend to freeze the public in a polarized position - e.g. Roe v. Wade, Brown v. Board, and they risk a huge backlash that stops what is already changing in the court of public opinion. So their decisions seem to have been designed to avoid that.
So what I'm seeing is rulings where the court strongly suggests YES/NO, but then leaves it up to the lower courts to work out so that nothing obvious is changed immediately, but the public is put on notice that change is coming and has the chance to work it out politically.
The one outlier is Obamacare, which I think the court simply decided to leave to the political process without taking a stance.
Ok, the gay marriage thing...
1. California: They ruled only that the appellants had no standing to bring the suit. That means the court has taken NO position on whether California can ban gay marriage or not in this decision. It says nothing about what the court will say when the issue comes back in some other form. All it says is that the paperwork wasn't right for the court to look at this appeal.
The result will be that the ban on gay marriage is struck down and gay marriage CAN be made legal in California.
There is no other meaning to this decision.
2. DOMA: Ok, the DOMA stuff is interesting. This is a classic example of how courts are supposed to work, procedurally speaking, by issuing as narrow a ruling as possible.
This challenge was brought under the 5th Amendment equal protection clause rather than the 14th Amendment. The 14th requires showing a protected class, the 5th does not. This matters because it means the court did not address the issue of whether gays are a protected class. Hence that issue, i.e. whether there is a right to gay marriage, was not addressed at all.
What the court did was issue the narrowest possible ruling in favor of gays. It said that when you have a right granted like marriage, then you cannot discriminate against people in how you grant that right. In other words, because New York allows both hetero and gay marriage, it violates the constitution to treat one form as inferior to the other:
“The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate
treatment of that group.”
What this means is this: this is a narrow ruling which applies only where gay marriage is granted. If gay marriage is granted, then you can't treat it differently than you do hetero marriage. And Congress has no right to impose such a distinction. The court took no stance in this decision on whether gay marriage is a right under the 14th Amendment.
It does talk about states having the right to define marriage, but that strikes me as a red herring because the ruling is not that Congress can't trump states, the ruling is only that Congress can't violate the Fifth Amendment by treating gay marriage differently where it has been created. This is because DOMA didn't ban gay marriage at the state level, so the court had no reason to address which would prevail -- states or Congress, if there is a conflict.
So what you have is:
1. You can't discriminate between gay and hetero marriage.
2. No decision on whether the feds can ban gay marriage or force gay marriage on the states.
3. No decision on whether gay marriage is a right.
BUT, I would say the writing is on the wall. The court talks a lot about Congress "seeking to injure" and to "impose stigma" to offend "dignity," etc. Those are strong words for a court to aim at a legislature and that suggest strongly that a 14th Amendment challenge will ultimately prevail with this court because they see opposition to gay marriage as vindictive.
What about the issue of polygamy?
What have you got in mind Kit? ;P
In all seriousness, this ruling would hold that if a state granted polygamy, the feds could not discriminate against polygamy in that state. This decision says nothing more.
But as you and I have discussed, there is a fundamental difference between gay marriage and polygamy which will prevent polygamy from being declared a right under the 14th Amendment.
What is the difference, exactly? Between the barring of it being discriminated against in the state it is legal and it being a right under the 14th amendment?
I'm trying to understand the nature of today's ruling.
Andrew and Kit, what does this mean for the prospects of starting my personal harem?
Kit,
They are different provisions with different requirements....
The 5th and 14th Amendments are different rules. The 5th says the Federal government cannot deprive individuals of life, liberty or property "without due process" of the law, which has an implicit requirement within it that people be treated the same under the law. Individuals means anyone.
In other words, if the Feds grant a right, then the Feds cannot discriminate against anyone in the granting of that right without a compelling state interest. Thus, for example, the Feds could not pass a law that allows hunting but then disallow lawyers or home owners from hunting just like everyone else, unless they had a compelling state interest in keeping those people from hunting.
By comparison, the 14th Amendment prohibits states (and the Feds actually) from violating an individual's right to "due process and equal protection." The due process provision is similar to the 5th Amendment above. The equal protection provision, however, means the government can't discriminate against people because of their membership in certain protected groups (e.g. race, gender, religion, etc.).
Thus, to win under the 5th, you only need to prove that the law discriminates against you and that the Feds have no legitimate reason to do that. To win under the 14th, you need to prove that you were discriminated against because of your membership in a protected class.
When these gays sued under the 5th, they completely sidestepped the need to prove that gays are a protected class. Basically, they just needed to prove that they were discriminated against as individuals in that some benefit was given out by the state, but was not given to them without a legitimate reason. And on that basis, the court ruled in their favor: if you're going to allow gay marriage, then it must be equal to hetero marriage.
Since that resolved the issue, there was no reason to examine this under the 14th Amendment, where the gays would have needed to prove they are a protected class. IF they had needed to prove that, and the court accepted it, then the court would have needed to declare gay marriage a right so long as heterosexual marriage was granted because that would have meant that the act of granting marriage at all without extending it to gays would have been discriminatory -- it would be like granting "white marriage." But the court dodged that because it didn't need to reach that issue to resolve the case.
So the law right now is this:
1. If you grant gay marriage, it must be equal to heterosexual marriage.
2. We don't know if gay marriage is a right.
Does that help?
T-Rav, Probably pretty bad because I don't see any state granting polygamous marriage.
Also, I'm not 100% sure the Supreme Court would apply the 5th the same way in that instance. If a compelling state interest can be shown why the discrimination is acceptable, then you can discriminate.
Andrew: The elimination of affirmative action and the related restrictions is actually leading to Asians taking over the California system.
California passed a "no AA" law some time back. The result was that minorites ended up at the smaller campuses where they were more successful at getting their degrees and, as you say, the Asians took over. I was in a graduate physics class with 20 students and was the only caucasian. The professor was also asian and cracked jokes about how all those white guys looked alike. I found the irony amusing. :)
K, That's what I'd read as well after California passed that.
When I started out in college, I went to an engineering school in upstate New York. We had twenty black kids out of about 6,000 students. They had been let in under affirmative action and they were all doing very poorly. The irony was that if they had gone somewhere else, they probably would have done really well, but they just couldn't compete at that school. So in the end, all the affirmative action program did was hurt them.
As an aside, that was my first run-in with Asian parents. I knew a guy FOB from Korea who got a 4.0 at one of the best schools in the world and his parents berated him for not finding a way to get extra credit. Yikes!
What about Sekhar v. Unites States?
Talk about asinine: a little bit ago I heard someone on NPR assert that we continue to need things like affirmative action and, more importantly, the VRA because people like Paula Deen exist in the world. Incredible!
At least we can be certain now about which god Deen was sacrificed to. But even assuming she isn't the victim of a hatchet job, just how is Deen keeping minorities from voting or going to school? By giving them coronaries?
Whoa! That's wading dangerously close to some uncomfortable stereotypes.
tryanmax, It's the same garbage you always hear when someone can't prove something exists, they assume it's kept secret. Hence, since Deen said a bad word, that must mean that we honkeys are trying to keep blacks from voting and from working. It's nonsense, but weak minds buy it. Too bad for them the Supreme Court doesn't care what kind of paranoid runs through their tiny brains.
Kit, What about it?
What did the Court say in that ruling and what exactly was at issue?
Kit, I haven't read it. It deals with the definition of "property" under the Hobbs Act, which prohibits extortion and some other things, and whether or not a recommendation of an investment can be considered "property."
I haven't read this though, so I'm not sure what all was at issue or how it turned out.
Well, the drama's not confined to the courtroom this week. Check this out.
Now-ex-Patriots tight end Aaron Hernandez has been charged with the murder of 27-year-old semi-pro football player Odin Lloyd.
According to ESPN...
Hernandez and Lloyd allegedly had an argument at a club last week. (He was apparently dating the sister of Hernandez' fiancee.) Lloyd's body was found in an industrial park less than a mile from Hernandez's home a few days later.
Investigators say Hernandez and 2 others picked up Lloyd early June 17th and that Lloyd sent texts indicating he was with Hernandez at that time. Surveillance footage from Hernandez' home appears to indicate that he left with a gun. Employees at the industrial park reported hearing gunshots about an hour later.
Hernandez was reportedly going to be charged with obstructed last week, after it was reported that he damaged his security system, smashed his cell phone, and had a cleaning crew clean his mansion.
Hernandez was released by the Patriots this morning, about 90 minutes after his arrest.
-Rustbelt
Sorry, I didn't clear that up. Hernandez was reportedly going to be charged with 'obstruction of justice' last week. However, I'm not surprised with the turn of events. When he was taken from his home early this morning and released by the Patriots only 90 minutes later, my gut said this was far more serious.
-Rustbelt
Rustbelt, I've been following it. I think they've got him cold. The police seem to have taken their time and really gathered evidence before acting. From what I've seen, he's got a history of violence as well including being linked to one or more shootings.
I knew a guy FOB from Korea who got a 4.0 at one of the best schools in the world and his parents berated him for not finding a way to get extra credit.
I knew a guy from Korea who worked at a highly technical American aerospace company. He eventually went back to Korea as a professor at one of their universities because American companies couldn't provide sufficiently challenging work for him.
And BTW, a large percentage of those Asian physics grad students were from the PRC. Considering my experience in grad school, perhaps you can understand my resonance with immigration.
K, I would estimate that about 15-20% of the student body at Rensselaer was foreign as well. They were tough to beat because they were often the best their country had to offer.
The new immigration bill, by the way, really expands the guest worker program at the tech company level. Ultimately, I think that's good for the country, but it's going to be hard on American techies.
It's going to be worse than hard on American techies. The increased number of tech people will lower the salaries and fewer Americans will go into it. It will also end up heling transfer of American tech overseas.
K, I'm not happy with that either, but that's the one thing both sides seem to want to do.
I said in another thread the figures suggest that it is not self-evident that illegal immigrants cost a lot of money. They may be a net gain or drain but it is not "obviously so". Well, it´s the same with diversity. The Supreme Court and most people assume that whatever it is, it is good and desirable, or cost-free or the benefits always outweight he costs. All that matters is how we get there.
I do not believe that anymore. The Supreme Court should have demanded proof that it is a worthy goal at all, which means that benefits must be measured. All of America and almost every place or institution in America are already diverse to varying degrees. It is NOT self-evident that fumbling with the percentages for the next few decades is necessary as opposed to insane.
El Gordo, I think that people like the idea of diversity. When most people think of "diversity," they think of different restaurant options and maybe some cultural stuff. They think of Americanized foreigners who give us a view into their culture from a safe difference.
The problem is that's not how the diversity machine views diversity. It views diversity as a means of destabilizing the existing order. It views diversity as a way to replace our right and wrong with a new set of rules defined by them under the guise of being open to all cultures... something they most definitely are not.
So there is that problem with diversity.
And even beyond that, as you say, it is not evident at all that tinkering with the percentages will add anything of value.
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