As Blume pointed out to me boy oh boy is the plaintiff in that case unsympathetic.
I am really annoyed with this whole "Oh, the Texas schools are all segregated to the college level and so you get diversity with the top 10% rule!" defense. WTF?
One thing I hadn't known until a few years ago was that Brown v. Board of Ed wasn't dealing with a fully segregated school system but one where there were segregated schools until the high school level, at which point, surprise!, the white kids who'd had better facilities and training and tended to do better than the black kids who hadn't and were now being evaluated by white teachers in a majority-white system. The paragraph above is why this is on my mind again.
my silver lining is that assholes will shut the fuck up.
No they won't. They'll find something else stupid to say. They always do.
... I suspect the appeal of affirmative action programs is that they're super cheap to implement.
I think the appeal is that they produce visible results quickly.
3, 4: Yes; I was at UT when the 5th Circuit struck their race-conscious admissions policies in the mid 90s. There was certainly no detectable shutting the fuck up about affirmative action. On the contrary, the crowing about the decision was unbearable.
There is no way in which a reversal in Fisher will make things better. It won't even end litigation over race-conscious admission practices in education. There will be more cases, and they will involve allegations by the same groups of conservative lawyers and law firms that various schools and admissions committees are tacitly (rather than openly) paying attention to race in admissions. And probably also attempts to use any precedent the Court sets in this case in other contexts outside education.
Anyhow at least it would put an end to wealth-based affirmative action at the Ivies.
HAH I FUNNY
That's actually what I should answer when I hear that perennial complaint.
Fisher is unsympathetic ("But my daaaddy went to UT!") and the facts, as related by Nina Totenberg, don't seem to be on her side; UT claims it can show numerically that even with the "special circumstances" factor removed, Fisher wouldn't have been admitted.
Her other complaint is that she doesn't get to be part of the old (white) boys network:
"The only thing I missed out on was my post-graduation years," she said. "Just being in a network of U.T. graduates would have been a really nice thing to be in."
Texas lost to WVU. There's no more joy in that network.
11: That was the thing I found most unsympathetic. She got an education, she has a job. Now she's whining. Her argument seems to be something like, sure I was only medicore, but I should have gotten in anyway.
It really, really, really irritates me that affirmative action in college admissions is used as a synecdoche for all affirmative action efforts. Contexts in which "We have this formula, and then depending on your race we change some of the numbers" is an accurate description of an affirmative action program aren't really that common outside of college admissions, but that's about the hardest to defend.
Does this just apply to public schools or are private schools included too?
Most likely private schools too, according to today's story in the NYT.
Good piece on Scalia as an intellectual fraud and the constitutionality affirmative action.
The right 'affirmative action' talking point is never going away, it's the modern way to divert your resentment over your sucky life on to black people.
14
... but that's about the hardest to defend.
As opposed to what? Explicit quotas? Goals which amount to quotas?
I haven't paid any attention to this case legally -- does anyone know how they got past the standing issue, or is this one of those cases where proving standing is constitutionally unnecessary because white people are complaining?
18: Hiring and admission policies that require outreach to minority applicants; programs providing support for minority employees and students; policies requiring organizations to collect and analyze hiring/promotion data to see whether current practices are a source of bias against underrepresented minorities, and changing those practices where they are -- that's all affirmative action.
It's surprising to me that more money isn't put into early childhood programs. The Head Start randomized trial was originally written off as a failure, because the improvements in test scores and IQ were transient, but longitudinal analyses have shown that the program is a net positive, even if you only look at spending, purely from the change in incarceration of people coming out of the program. We'd eventually hit a point of diminishing returns if we keep throwing money into early childhood education, but that point isn't even on the horizon yet.
Conversely, it's not even clear that affirmative action has a net positive effect for the people it's supposed to help. The data seem to indicate that kids who are thrown in over their heads will do worse (in the long run) than they would have had they gone to a school where they would have been in the upper half of their class.
One thing about affirmative action in college admissions -- it's essentially free. It's not competing for funding with early childhood education, because it doesn't cost anything significant.
kids who are thrown in over their heads
This does not apply in the most publicized instances we're talking about. There are many times the number of qualified applicants as there are spots at selective colleges and universities.
19
Re standing Scotus blog has :
The argument began with Justices Ginsburg and Sotomayor suggesting the plaintiff lacked standing or the case had become moot because the student had graduated from another school and allegedly wouldn't have been admitted even if race were not taken into account. Petitioner's counsel argued that the denial of an equal opportunity at a chance of admission was injury in itself, and the student should be allowed to prove that she would have been admitted or suffered other damages. Justice Scalia chimed in to remark that the Court had not required proof that a contractor would have gotten a contract under a racially discriminatory contracting scheme, suggesting the same principle provided standing here.
I don't think the claim she wouldn't have been admitted in any case is considered part of the factual record at this stage.
22: One thing about being PWNED in the OP is that you're so PWNED.
19: Yeah, I don't know. I haven't paid attention to it legally either; next to go to Scotusblog, I guess.
In the world that we described in the earlier thread about Heebie's virulently anti-anti-racism students, where everyone grows up learning that the answer to racism is for people to be colorblind (or for resentful and defensive people, to pretend grudgingly to be colorblind), it's almost impossible to justify race-based affirmative action.
22
... it doesn't cost anything significant.
Maybe not in money terms but it has other costs.
23: But it does sort of happen at UT, especially with the top 10th program. Drop-out rates are much higher for first generation students, who are disproportionately minorities. Now it's a bit obnoxious to call that "thrown in over your head" when it's a function of having been groomed or not by your family, but essentially first generation students face a more overwhelming situation, and would be more likely to succeed at a less competitive school.
The moralistic "discrimination is wrong" starting point drives me nuts. Discrimination on the basis of place of birth (national origin) is never questioned by the American right.
I don't believe that the abolition of race-based affirmative action in college admissions will be particularly significant (I don't think its absence in California's public colleges has been especially important, though I'd rather have it back and think that Ward Connelly et al are despicable). But I find the constitutional and moral arguments that will inevitably be used to strike it down in this case morally and legally repugnant. And I think that the rejection of Parents Involved type plans at the primary and secondary school level was a much bigger deal and is very unfortunate. And I worry that we'll be edging towards a jurisprudence in which efforts across the board to modestly ameliorate the harms of racial hierarchy (ie, a school-sponsored efforts to figure out the ways in which their policies are subtly discriminatory) will be subject to continual attack from right wing yahoos. Or I guess what LB just said.
24: Sounds like he was talking about City of Richmond v. Croson, which is indeed a leading case standing for the principle that the constitutional standing requirement is waived for white people complaining about affirmative action.
31: it is by libertarians who want an end to all immigration controls.
In any case, I think that is a different issue. If you accept the notion of a national community of citizenship (which is what creates national origin discrimination) then the question arises whether the national community should discriminate between classes of citizens. Which America has rejected and which liberals generally think is illegitimate unless there is a really rational basis for such discrimination (e.g. children vs. adults).
If you reject the idea of the national community of citizens you are in a very different place practically speaking, you basically are led to world government. Although the logic of pure classical liberalism leads toward rejection of the nation-state libertarians are the only ones who follow it through.
31: Yeah, having just refreshed my memory via the Nina Totenberg piece linked in 10, the notion that consideration of race, as one of many factors included in the so-called Personal Achievement Index, is discriminatory sets a up a bizarro-land slippery slope according to which one might as well argue that considering work experience or community service (other factors in the Personal Achievement Index) is likewise discriminatory.
If the sort of affirmative action policy in place at UT is struck down, will the door be open to challenge Title IX?
I have seen an argument that it is gender discrimination for schools to fund separate sports for women and girls at all. If they can compete on a level playing field, they can play, otherwise, no dice.
I'm still furious about Oscar Pistorius.
Call it what you like, but as you point out drop out rates are higher, and, of the kids who graduate, fewer of them will go on to grad school. That's true not only at UT, but in the national data, and it's true differentially for students who go to a school they wouldn't have been accepted to otherwise vs. a school where they would have been accepted without affirmative action.
22: It's not free in terms of political capital. There's only so much you can push for. Why not push for something effective, rather than something that seems to have a net negative effect for the group you're trying to help?
At the risk of sounding like a libertarian, that's what bothers me when people agitate for a higher minimum wage rather than a higher EITC. Why not try to enact the policy that has a positive effect, both empirically and theoretically, rather than implementing a policy that has mixed results empirically and has little to no theoretical basis.
I know! One letter different and his name would have been totally funny for a dude running on mechanical legs! One measly letter!
It's also worth pointing out that Scalia et al don't think the 14th Amendment prohibits discrimination against women in college admissions, to the point of ... not admitting them at all to major public universities (eg the VMI case). And this is one of only about 100 other ways in which conservative judges are wildly hypocritical on this issue!
38.1: I'd have to dig up my copy of The Shape of the River, but I don't think it's well established at all that the recipients of affirmative action preferences are generally worse off for it. If that were a given, sure, it's a terrible idea, but I don't believe that it is.
(I have seen the studies I think you're referring to, but I don't recall them well enough to have an informed argument about them until I do some re-reading. I just remember being unconvinced at the time.)
23
This does not apply in the most publicized instances we're talking about. There are many times the number of qualified applicants as there are spots at selective colleges and universities.
Applicant quality is a continuous attribute not a binary one. If you admit enough less qualified black applicants to a place like Caltech to match the black percentage of the population you will end up with black students with substantially less academic ability as a group than the rest of the students to the point that they will very likely have trouble keeping up. It is certainly arguable that many of them would be better off at a less demanding school.
This is less clear at a place Harvard where the hardest part is getting in.
19: As to standing -- the court of appeals (which ruled against Fisher on the merits) recognized that she has standing at least to seek money damages for the injury of being personally subject to (allegedly unconstitutional) discrimination on the basis of the protected category of race. Presumably the damages would be minimal or nominal but as this is a test case that hardly matters.
Somewhat pwned on preview, so I'll add that I actually don't think that's a white-people-challenging-affirmative-action-only rule -- see, for example, Part II of Justice Brennan's opinion in Heckler v. Mathews.
And I worry that we'll be edging towards a jurisprudence in which efforts across the board to modestly ameliorate the harms of racial hierarchy (ie, a school-sponsored efforts to figure out the ways in which their policies are subtly discriminatory) will be subject to continual attack from right wing yahoos.
How would this be different from our actually-existing jurisprudence?
38
At the risk of sounding like a libertarian, that's what bothers me when people agitate for a higher minimum wage rather than a higher EITC. Why not try to enact the policy that has a positive effect, both empirically and theoretically, rather than implementing a policy that has mixed results empirically and has little to no theoretical basis.
Isn't raising the minimum wage both cheaper and more popular?
I'm still furious about Oscar Pistorius.
I want to read this as a couplet.
I agree with 43, though of course I hope we can all agree that standing doctrine is often used as a political device to duck hard cases or keep plaintiffs out of court who judges don't like, while being generally capacious enough to allow courts to hear the cases they want to hear.
43: Heckler v. Matthews is a very different fact pattern. There was no question but that the plaintiff was personally impacted by the allegedly discriminatory practice, the standing issue was whether Congress could deprive him of standing by saying that the remedy, if the practice were found to be discriminatory, would be to conform everyone else's treatment to the treatment given to plaintiff rather than the other way around. That's not a plaintiff who can't show that they were personally affected by the discrimination at all.
44 - it would make it even worse.
45 gets it right, plus an EITC (mostly) only works at a federal level but you can get state or local governments to enact raises in the minimum wage. And you overstate your case -- there's essentially no evidence of harm from raising the minimum wage in the range anyone remotely serious has proposed in the US.
15, 16: Definitely private schools too. Title VI of the Civil Rights Act says the equal protection clause binds any school receiving federal money, at least with respect to racial discrimination.
. . .you overstate your case . . .
There's also essentially no evidence of benefit, hence my use of the phrase "mixed results". There are studies showing either a barely noticeable benefit or a barely noticeable harm. Why agitate for a policy that has basically no noticeable effect, and, moreover, no theoretical reason to believe that they should be strong positive effects?
It pretty much only exists at the federal level because people are so enamored of the minimum wage. There's nothing* keeping activists from pushing for a negative income tax at a state level, except that the minimum wage is a catchy term everyone knows, and a negative income tax is obviously evil because Milton Friedman also supported the idea. Well, that's what it looks like to me, at least.
I'll grant that it's more popular (which is what bothers me), but it's certainly not cheaper, if you consider the benefits. A policy that costs little and has zero benefit is infinitely expensive, from a cost-benefit perspective.
* as far as I know. Perhaps there's some obscure legal reason I'm not aware of.
The budgetary impact, for states that can't deficit spend? An income support program like that, which is necessarily going to hit hardest exactly when tax receipts are lowest, is a real problem at the state level.
41:
It's been many years since I read that stuff, so I'm just stating my recollection of the results; I'd be happy to hear about any corrections you have to what I've said.
I haven't read The Shape of the River, but it looks interesting. I'll have to check it out.
the question arises whether the national community should discriminate between classes of citizens. Which America has rejected.
Assumes facts not in evidence.
38: Why not push for something effective, rather than something that seems to have a net negative effect for the group you're trying to help?
It's not remotely clear to me that consideration of race has a net negative effect on a given race. I'm assuming that part of UT's defense of its policy will be that there's a compelling interest *not just for minority students, but for the student body as a whole* in encouraging diversity, that overall outcomes are improved in so doing, etc.
I'm pretty sure that this has been proven to be the case: slowly but surely, the middle and upper middle classes admit of more minority members. More minorities start small businesses, write books, become community leaders, and so on.
Affirmative action programs aren't really a form of welfare, which is how you seem to be viewing it.
51 -- they're not mutually exclusive alternatives, you know. In fact, you need a high minimum wage when you have an EITC to prevent against an EITC downward effect on wages. A minimum wage is also obviously "cheaper" in terms of short-line budgeting, and in most states funding a state level EITC is a budgetary impossibility.
I also think you are substantially overstating the case that raises in the minimum wage don't have "benefits" (obviously a higher wage benefits the people involved, so you're talking about net benefits) but I don't have time to research the issue. Anyhow, the best policy would be to have both a high-ish minimum wage and a generous EITC, but you take what you can get.
48
Did you actually read the case you cite? Part II of the opinion says in part:
These decisions demonstrate that, like the right to procedural due process, see Carey v. Piphus, 435 U. S. 247, 266 (1978), the right to equal treatment guaranteed by the Constitution is not coextensive with any substantive rights to the benefits denied the party discriminated against. Rather, as we have repeatedly emphasized, discrimination itself, by perpetuating "archaic and stereotypic notions" or by stigmatizing members of the disfavored group as "innately inferior" and therefore as less worthy participants in the political community, Mississippi University for Women v. Hogan, 458 U. S. 718, 725 (1982), can cause serious noneconomic injuries 740*740 to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.[7] Accordingly, as Justice Brandeis explained, when the "right invoked is that to equal treatment," the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class. Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247 (1931).[8] Because the severability clause would forbid only the latter and not the former kind of relief in this case, the injury caused by the unequal treatment allegedly suffered by appellee may "be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Organization, supra, at 38, and he therefore has standing to prosecute this action.[9]
51 further -- on "benefits" of a minimum wage increase, see here, which admittedly comes from a liberal source:
http://www.epi.org/publication/ib341-raising-federal-minimum-wage/
It's surprising to me that more money isn't put into early childhood programs.
Was this a joke?
It's surprising to me that we started two major wars in the last decade.
Affirmative action programs aren't really a form of welfare, which is how you seem to be viewing it.
I support a robust welfare program; I would support affirmative action, if that's what it was. But, I believe the marginal student is going to be better off graduating from UT-Dallas, than dropping out from UT-Austin, for example.
58: I'll check that out when I've more time, perhaps over the weekend. One of the first results that popped up when I did a google scholar search (that I haven't had time to read) was this paper: http://ftp.iza.org/dp2610.pdf
We study the effects of minimum wages and the EITC in the post-welfare reform era. For the minimum wage, the evidence points to disemployment effects that are concentrated among young minority men. For young women, there is little evidence that minimum wages reduce employment, with the exception of high school dropouts. In contrast, evidence strongly suggests that the EITC boosts employment of young women (although not teenagers). We also explore how minimum wages and the EITC interact, and the evidence reveals policy effects that vary substantially across different groups. For example, higher minimum wages appear to reduce earnings of minority men, and more so when the EITC is high. In contrast, our results indicate that the EITC boosts employment and earnings for minority women, and coupling the EITC with a higher minimum wage appears to enhance this positive effect. Thus, whether or not the policy combination of a high EITC and a high minimum wage is viewed as favorable or unfavorable depends in part on whose incomes policymakers are trying to increase.
I have no idea what the author's political views are, but, since he's an economist, there's a better than average chance that he's not a liberal.
My recollection of previous results is in line with that, which is that a minimum wage hurts people who are already the worst off (e.g., high school dropouts).
57: You are correct in saying that "white people complaining about affirmative action don't need to demonstrate standing in the manner everyone else does" is not an explicitly stated rule of law -- you have to look at how the cases come out to induce it.
Fisher is unsympathetic ("But my daaaddy went to UT!")
I fantasize about being made President or whatever of a reputable university so I can end preferences for "legacy" students.
There's also essentially no evidence of benefit, hence my use of the phrase "mixed results". There are studies showing either a barely noticeable benefit or a barely noticeable harm.
Huh? Are you talking about the minimum wage? If so then that seems wildly off. Are you seriously saying that the minimum wage doesn't transfer significant income to low-wage workers? That is absurd. Or are you claiming that low wage workers are not really low income, e.g. they are all suburban teenagers on summer jobs?
The studies on the minimum wage show at most very small negative employment effects (and possibly even a small employment gain). Combine that with raised wages and you get a quite significant income boost.
61: ah, I see you are looking at the latest from Neumark and Wascher. They have been fighting a valiant battle to find large negative minimum wage effects for 20 years now. First they tried to 'debunk' the Card/Krueger and other studies and failed, now I see they have moved on to saying that hte low-wage labor market has 'changed' since all the studies showing not much effect. If you want to see a convincing piece rebutting their work and once again finding no effect on employment, see this paper .
Economics is a pseudoscience, they try valiantly but never settle anything conclusively to everyone's satisfaction. Following economics is a great training in why the scientific method does not work well when applied to social phenomena.
61: But, I believe the marginal student is going to be better off graduating from UT-Dallas, than dropping out from UT-Austin, for example.
It doesn't look to me as though marginal students are admitted under the UT policy that considers race as one of a dozen measures. Race doesn't trump mediocre grades or board scores. Read the link in 10:
In admitting students outside the 10 percent plan, the university notes that it combines two scores. The first is the Academic Index, based on grades and board scores. The second is the Personal Achievement Index, based on two independently graded essays plus six other factors: leadership potential, honors and awards, work experience, community service, extracurricular activities and special circumstances.
Only this last category, special circumstances, can include consideration of race or ethnicity, or, for that matter, economic circumstances, or whether the applicant comes from a home where English is not spoken.
The overall Personal Achievement Index score, a maximum of 6, is combined with the Academic Index score, and then plotted on a graph. Based on the available number of seats, everyone above a certain combined score on the graph is admitted, and everyone below is rejected. The university says Fisher fell below the line.
63: Word.
I am curious if ending AA will mean that a bunch of mediocre white guys who thought they would benefit will discover to their chagrin that their preferred university now is offering "their" spot to the vastly more qualified Asian-American student who hadn't been let in to keep the numbers balanced.
But they're going to whine anyway. We had a student whining because last year's star student with a 4.0 and 174 LSAT got into Yale Law, and obviously it was just because she was a woman. My response was very rude, but suffice it to say if you're a mediocrity, you're always going to find an excuse to be upset about "them."
Funny that few of the people worrying about the unfortunate impact of affirmative action on minority students and marginal white candidates say anything about affirmative action for athletes. Nor, as far as I know, is there a stigma attached in the corporate world of he 'yeah he went to an Ivy, but he was a varsity admission'. Or, on a different track 'her mom went there too, you know'.
That was the outcome at the UC's when California switched to race-blind admissions, wasn't it?
I have also heard arguments that affirmative action benefits the entire study body, since they are then exposed to a diversity of backgrounds and encounters stories of different life experiences.
On the other hand, re 67, I did have some sympathy for a poor recent Russian immigrant friend's whining about the affirmative action bonus in Law School admissions for a mutual friend who was the scion of a very wealthy Puerto Rican family.
I have also heard arguments that affirmative action benefits the entire study body, since they are then exposed to a diversity of backgrounds and encounters stories of different life experiences.
This is both very true and completely useless as a political argument, unfortunately.
66: Sorry, I don't have time to keep checking this thread and get work done, but let me just say that I'm using the word marginal not as a pejorative, but in the sense that an economist would use it in the phrase "at the margin".
Or, more succinctly, 30 to 66. My alma mater had somewhat effective programs to deal with the problem in 30, and I think it would be a great thing to expand those programs to have larger scope, and so that they exist at more schools. That's yet another thing that I think would be a better use of political capital than affirmative action.
59: The pilot programs are so effective that they pay for themselves with money left over. There's free money just sitting there, and very few people are picking it up. I suppose the problem is the free money comes in twenty years down the line, and politicians aren't any more forward looking than CEOs. It's not clear how well those programs would scale nationally, since we'd have to hire more teachers than currently exist, but, at a local level, it seems obvious that we should be spending more.
I mean, next you'll expect us to defend an education in the humanites.
People really do see affirmative action everywhere, even when there's no evidence that it played a part. I was recently involved in a work issue relating to whether a state agency had acted improperly in awarding a contract (not that it's important, but my best guess is no, they hadn't, or not really -- their motives were above board and reasonable, and while their procedure was a little messed up, it arguably wasn't seriously so). The explicit issues had nothing to do with race or gender. I saw. or at least should have seen all the internal documents there were, none of which had anything to do with race or gender.
Discussing the matter after the fact with a co-worker who was also involved in the same issue, I was told that obviously what was really going on was that the agency messed with the process to give the contract to a minority-owned business. I pressed on the co-worker's basis for that, because if it were true I should have known it. And it turned out that there was no basis other than that it was the sort of thing a particular higher-up would probably want to have happened.
Now, maybe it did happen -- it's possible -- but in my co-worker's head it's established fact that it did.
69.2 This is the rationale under which the Supreme Court has allowed affirmative action in the past, right?
I have also heard arguments that affirmative action benefits the entire study body
You heard it upthread at 55.1 (or .2, depending on how you count), even.
sral is making me grumpy overall.
For the legal dorks among us, check out this short piece about various procedural defects in Fisher:
http://www.yalelawjournal.org/images/pdfs/1102.pdf
48: Sorry for the delay in responding, I got pulled into a meeting.
You can distinguish Heckler on the facts if you like, but I think the Court was pretty clearly recognizing invidious personal classification itself as the injury, provided that it occurs on an invidious basis. Further, though it's true that the individual in that case also suffered the injury of denial of a benefit, but that separate injury couldn't be the basis for standing because it wasn't redressable (and redressability is also necessary for standing).
And I think that's correct, too -- an applicant who is a person of color and who is denied equal consideration in an applications process because the committee considering that person held racist beliefs about that person's inherent inferiority shouldn't have to prove that a non-racist committee would have picked them in order to show standing. That should go only to the appropriate relief.
The problem with applying that rule to a case such as Fisher's is that the discrimination to which Fisher was allegedly subject had nothing to do with any belief or implication that Fisher was inferior. But I would call that a merits issue, not a standing issue. If UT's affirmative action program were like racism, Fisher should be able to challenge it. The point is that it's not.
(As a footnote, I don't dispute that the Court (especially the conservative Justices) frequently lets its views of the merits contaminate the standing inquiry and that this has been particularly problematic in the context of cases about racial discrimination. But I would point to the race-conscious redistricting cases as much better examples than this one.)
But I would point to the race-conscious redistricting cases as much better examples than this one.
You mean Shaw v. Reno? Yep, that's actually the context in which I originally formulated the standing rule cited above.
And I think that's correct, too -- an applicant who is a person of color and who is denied equal consideration in an applications process because the committee considering that person held racist beliefs about that person's inherent inferiority shouldn't have to prove that a non-racist committee would have picked them in order to show standing. That should go only to the appropriate relief.
I don't think this case could be brought, though, on behalf of an individual. If you had a class, and evidence of disparate impact such that you could show that some class members were actually affected by the discrimination, that'd be one thing. But an individual showing that decisionmakers had racist beliefs without showing an effect on them individually? I don't think that's a cognizable cause of action. Maybe I'm wrong, but can you point to a case that looks like that?
That is, maybe it'd be a good rule to make that situation a viable cause of action, but I'm pretty sure that right now it isn't, while Fisher's situation is, and the difference is that you need less standing to challenge affirmative action than you do to challenge racism.
the difference is that you need less standing to challenge affirmative action than you do to challenge racism.
This is well-put, thanks.
As a caution -- that's how the cases look to me, but it's certainly not an explicit rule of law and lots of perfectly good lawyers would disagree with me about it. Don't rely on what I said as something generally recognized as true outside of the small community of people I or someone who agrees with me have personally harangued about this.
81: I'm not sure I understand what you mean. You won't win a case like that if it turns out you can't prove facts that would constitute an injury, but why wouldn't you have standing to bring it as long as you pled such facts (with enough to withstand Iqbal scrutiny)?
But she's saying here that she was individually harmed, right? The state says she wasn't, because she wouldn't have been admitted anyways, but that seems to me to go to liability, not standing. The standing issues seem more like mootness (because injunctive relief is impossible now) and monetary damages would be nominal (and maybe 11th amendment barred?). But she's clearly claiming she was individually harmed.
I should say I haven't been following this case closely, and haven't read the briefs.
Sorry, retract 85, which was me--on a phone and did not follow te thread carefully. If all tat's being alleged is tat the hiring committee was racist and not that plaintiff wouldn't have gotten the job, sure, that might be a problem. But Fisher is alleging injuriy like that, as well as others.
85: It's an element of a Title VII cause of action that you show an adverse employment action -- in the contemplated case, a failure to hire. If you can't show that, you don't have an element of the cause of action.
87: Certainly, I'm not on top of the facts here. But I think that Texas's position is that on the undisputed factual record, she can't possibly show that she would have been admitted if she had been black. Standing is a jurisdictional issue -- surely the case isn't ripe for consideration of the constitutional issue by the Supreme Court if there isn't a finding of fact that she was, in fact, injured by the program.
81: Hmm. I was going to cite Turner v. Fouche, 396 U.S. 346 (1970), and in particular the passage at 362 to 363, but I see it was brought as a class action. But does that really make a difference? I mean, is your complaint really just that Fisher should have been required to sue as a class representative? (I assume she could have done that without difficulty.) Or is it that she shouldn't have been allowed to sue at all?
(The passage cited from Turner above is phrased in merits language, not standing language, but note that the Court rejected a standing challenge in footnote 23.)
There's nothing* keeping activists from pushing for a negative income tax at a state level, except in Alaska, Florida, Nevada, New Hampshire, South Dakota, Tennessee, Texas, Washington, and Wyoming.
92: Seriously, the existence of a class makes a big difference. If you can show that the discrimination had to have affected someone in the class, that's very different from showing that it affected you.
In the hiring committee hypo, my claim is that the individual plaintiff might have to show different treatment in the process -- e.g., resumes from the disfavored group were routinely discarded for that reason alone -- but not necessarily that the plaintiff would have been hired if the process were fair.
I think that's at the very least the law under Northeastern General Contractors v. City of Jacksonville, 508 U.S. 656 (1993), which is an affirmative action case, but I'm prepared to defend its holding on standing as correct regardless of one's views on the merits. See id. at 666 ("When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing.").
91.2 -- I'm not sure if I'm not following you or if you're confused about the difference between an issue of standing and an issue of being unable to prove an element of your claim. Maybe an example helps -- if my employer fires me, and I sue and claim the firing was based on my race, and the employer comes back on summary judgment and proves it has undisputed evidence that the firing was not racially motivated and anyway there are no damages because I immediately got rehired somewhere better at a better salary, I lose the case, but I clearly had standing to bring it in the first place and the court had jurisdiction to hear the action. Is there something different going on here?
95: I don't think it would be easy to find an application of that rule outside of an affirmative action context.
Now, that's not quite fair of me -- part of what makes it easier to bring suit against affirmative action programs than racists is that affirmative action programs are open and above-board, while racists lie. But I don't think a case brought by an applicant alleging "I will be able to show that the hiring committee did not seriously consider applications from minorities" would survive without an additional showing that the plaintiff would have been hired absent the discrimination.
94: Why? By assumption, no one in the class has gotten the disputed benefit. Someone in the class would have, but we don't know (and we'll never find out) who it would have been. Should it really make a difference for Article III purposes whether the complaint says "Fisher" as opposed to "Fisher, on behalf of herself and all others similarly situated"?
91.2: surely the case isn't ripe for consideration of the constitutional issue by the Supreme Court if there isn't a finding of fact that she was, in fact, injured by the program.
So, okay, if I'm following this correctly (I may well not be, because my nose is running like you wouldn't believe): per 24 upthread, the claim that she wouldn't have been admitted in any case isn't considered part of the factual record at this stage. The Supreme Court will now consider that. If it's found that indeed, no, she wouldn't have been admitted, then the Court can issue a narrow ruling that basically says she wasn't in fact injured by the program.
However, the Court can do what it's done a few times lately, and rule on the broader question (regarding the constitutionality of affirmative action programs). This may require that they essentially overturn some other past rulings -- I haven't followed the details on that part.
Is that roughly right?
I fear I'm not following along well at all. Sorry.
97.2: I'll concede that I haven't been able to find such a case, limiting myself to Google (can't really use Westlaw for this), in the time that I've been willing to carve out of my workday, so fair enough.
That said, were such a case brought today, I would bet standing would be upheld on the authority of Northeastern Florida Contractors and similar cases, because those cases would be difficult and embarrassing to distinguish. I think your criticism really goes to whether five members of the Court as it was in 1993 would have adopted that rule in the first instance if they had been confronting traditional racial discrimination cases rather than affirmative action cases. That's between them and the avenging specter of Justice Marshall that would be haunting their dreams if there were any justice in the world.
96: First, what's going on is that I was confused about the lower court opinions. I thought, from something I'd read, that it was no longer disputed that she wouldn't have been admitted even in the absence of the affirmative action program, but on a skim of the district court opinion and the fifth circuit, I now think I'm wrong about that. If the case before the court is that she claims to be able to show that she would have been admitted in the absence of the program, that's enough for standing.
99: The Supreme Court doesn't do factfinding -- I guess, given that there seems to still be a live issue of material fact on whether she can show that she would have been admitted, that if Fisher wins the constitutional issue the case goes back down to the trial level for a wildly pointless trial on whether she gets her $100 in damages.
The Supreme Court doesn't do factfinding
No, I didn't think so.
Okay. Thanks.
102 -- oh, I see. I don't really see how on any theory (at that point, I guess you could call it standing, call it liability, whatever) she could prevail if admitted that she was not adversely affected by the allegedly discriminatory program at all.
Although, now I'm confused again reading Scotusblog. The oral argument on standing doesn't seem to have been "She's alleging that she would have been admitted, so there's her injury", it seems to have been "Does she or does she not need to show at some point that she would have been admitted, or is it enough that she can show that even if she wouldn't have been admitted in its absence, that she did have a race-conscious affirmative action program interact with her application"? If the latter is sufficient for standing, then that's a rule I don't believe gets applied outside affirmative action contexts.
I don't think Sierra Club's on point. Sierra Club says you've got to have an individual who suffered the injury as a plaintiff (or you've got to have members who suffered the injury in an associational case). We're arguing about whether (allegedly invidious) racial classification itself (without proof of further adverse effect) constitutes an injury. If it does, then everyone in the class has suffered the injury -- and so has the putative class representative, so the putative class rep can sue alone. If not, I don't think it helps to say: someone in the class suffered the injury of being actually denied a benefit, but we don't know who. Certainly, I don't think Sierra Club establishes that point.
Also, if the only plaintiffs with standing were those who would have been admitted to the school even regardless of the affirmative action program, how could Fisher be a proper representative of the relevant class without evidence that she would have been admitted but for the affirmative action program? Her claims wouldn't be typical of the class that would be entitled to recover (and wouldn't the class also lack commonality on a key factual issue?).
See my 102 to clear up the point of confusion from which I was arguing. I don't think she should need to prove she would have been admitted before bringing the case -- that couldn't work because you need to bring the case to make the proof. But I think she should have to be able to claim that she can show that she would have been admitted: that she was actually individually injured by the operation of the policy. The argument before the Supreme Court appears to be contemplating the possibility that such a showing is unnecessary, and I don't think it would be outside the affirmative action requirement.
That is, "I don't think that showing, of actual injury, would be regarded as unnecessary outside the affirmative action context."
Yeah, OK. I think we agree on what the rule is for standing in the affirmative action context -- it's enough to show you were subjected to an allegedly unfair process, no need to show you would have been admitted or hired or otherwise received a benefit had the process been fair.
I think we disagree about whether courts today would apply that rule outside the affirmative action context (I think most would, but maybe I'm being naive).
As I mentioned above, I certainly do agree that the Supreme Court has been a lot more generous to plaintiffs on standing issues in the affirmative action context than outside it (compare, e.g., Shaw v. Reno with, e.g., Allen v. Wright).
I appreciate you indulging me -- I find it hard to stop talking about jurisdiction once I get started. But I'm going to try to do it now.
This is fun -- I've been feeling really muddleheaded lately, particularly on legal stuff, so having to argue it is good for me. (I hear you say, but surely you do this for a living, that should be keeping your legal argument skills honed? Trust me, I have the four month statute of limitations for judicial review of an administrative decision down cold, and it doesn't feel as if I've been talking about anything else for months.)
I have the worst memory -- I know you've been around here for ages, but I'm not remembering anything about you. You're a lawyer, but private practice, government, litigation, transactional, what?
I'm in private practice, on the litigation side, at a mid-sized firm in DC. Most of my work is dispositive motions and appeals. Some Supreme Court work from time to time, which is always fun. No involvement in Fisher, though.
So what I used to do before I became a jackbooted minion of the state. (I just bought myself a pair of boots that I think may be pretty much jackboots. I enjoy that more than I should.)
102
96: First, what's going on is that I was confused about the lower court opinions. I thought, from something I'd read, that it was no longer disputed that she wouldn't have been admitted even in the absence of the affirmative action program, but on a skim of the district court opinion and the fifth circuit, I now think I'm wrong about that. If the case before the court is that she claims to be able to show that she would have been admitted in the absence of the program, that's enough for standing.
Note there are two different questions here. Would she have been admitted absent the program? And would she have been admitted given the program if she were black? The second test would be considerably easier to satisfy and appears to me to be the correct one (based on the legal opinion cited above).
You're wrong about which is the right test, but I don't follow your argument. Spell it out?
116: What, they're not standard issue? The budget situation must really be dire.
There were a couple of months there when we didn't have redwelds, much less jackboots. My filing got even worse than usual.
Didn't have is an exaggeration. There were some in the supply cabinet occasionally, but you had to jump to get them. Supplies are much better now.
120: You should write that up in the style of a Civil War private writing home.
Motions whizzing by on all sides... scavenging the last of the binder clips from a fallen comrade's office... the plaintive sounds of a lone cell phone, ringing in the distance... You mean that sort of thing?
I find 120 totally infuriating. Why didn't you mention this at the time? We should have had a program in which lurkers at big NYC law firms (I know you're out there) stole office supplies for you. Or, more above-board, a program in which those same firms donated office supplies in order to, I dunno, keep state government going?
Or maybe you did mention it at the time, and I was too busy being drunk or arguing about something else or something.
I'd really like to see more thugs wearing this first style of jackboot.
I'm completely being a drama queen. Supplies were comically low, but there was enough to function, and even at a government salary buying myself pens wasn't a hardship.
127: Wow. It's like what the Flash would wear to an S&M club.
OK, we'll have to employ Operation Steal Office Supplies for some other purpose.
118
You're wrong about which is the right test, but I don't follow your argument. Spell it out?
From the opinion you cited above:
Although the severability clause would prevent a court from redressing this inequality by increasing the benefits payable to appellee, we have never suggested that the injuries caused by a constitutionally underinclusive scheme can be remedied only by extending the program's benefits to the excluded class. To the contrary, we have noted that a court sustaining such a claim faces "two remedial alternatives: [it] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion." Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in result). See Califano v. Westcott, 443 U. S. 76, 739*739 89-91 (1979).[5] For that reason, we have frequently entertained attacks on discriminatory statutes or practices even when the government could deprive a successful plaintiff of any monetary relief by withdrawing the statute's benefits from both the favored and the excluded class.[6]
Here you have two standards of admission one for blacks and one for whites. If this is not allowed then as the opinion states it can be remedied by adopting either standard for everyone. Again as the opinion states adopting the white (less generous) standard for everyone does not deprive the plaintiff of standing even if it means she will not gain by a favorable decision. It is enough that she would have qualified for the benefit (admission to UT) under the black (more generous) standard.
buying myself pens
I think I would just flat refuse to work until pens were supplied. And redwelds.
Those in private practice don't have this luxury, but you're a government worker, for chrissakes.
Yeah, buying your own pens is outrageous (and yes I know what public school teachers pay for out of their own salaries, which is even more outrageous). Our total failure to have a remotely normally funded and decent public sector is so goddamn infuriating.
131: You run into logical difficulties related to the size of the university, don't you?
97.2, I'm wondering if part of the disagreement here is Title VII injury vs Art III standing (adverse employment action being a requisite of the former but maybe not the latter?). It's certainly not the case that a putative class rep without Art III standing can somehow get that standing if some member of the putative class would have an injury (on a plane, no case to cite offhamd, but it's standard tactics to pick off class reps for lack of standing. Of course some statues confer standing to pursue redress for the injuries of others). Sierra Club is about associational standing and another story altogether.
It's certainly not the case that a putative class rep without Art III standing can somehow get that standing if some member of the putative class would have an injury (on a plane, no case to cite offhamd, but it's standard tactics to pick off class reps for lack of standing.
This is right, and my 94 was offhanded and not right.
134
131: You run into logical difficulties related to the size of the university, don't you?
I don't see how this is relevant.
If the affirmative action program involves applying a significantly lower admissions standard to black students than to white students, and black students are a minority, then it is not possible to apply the standard applied under the affirmative action program to white students as well, because you would admit many more students than the university had room for. If the relief isn't practicable, it's not relevant.
But in any case, my understanding is that U of T alleges that she wouldn't have been admitted even if she had the benefit of the affirmative action program.
We all have our weaknesses, but I prefer to keep mine out of the legal record.
I was swimming when this part of the thread was live -- but yes, typicality is a necessary element for class certification, so the class rep has to have a claim. At least a claim under Article III.
I've been litigating for a decade now whether you can have a class action including defendants as to whom the class rep does not have a claim, but absent class members do, and the answer is mostly no, unless yo're in a certain state court system that seems to have an unreasonable affinity for Jesse James (e.g., plaque honoring him on courthouse lawn).
138
If the affirmative action program involves applying a significantly lower admissions standard to black students than to white students, and black students are a minority, then it is not possible to apply the standard applied under the affirmative action program to white students as well, because you would admit many more students than the university had room for. If the relief isn't practicable, it's not relevant.
In the case you cited above the law explicitly stated if the benefit was found to be improper it would not be given to anyone. The decision said such a provision could not be used to deny standing. So similarly any claim by the state of Texas (whether or not it is true) that it is impractical to apply the black standard to everyone cannot be used to deny standing.
(I'll explain 142.2 to lawyer-nerds. Class rep X has a claim against defendants A, B, and C that arises out of a contract between A and X, then A signed to B, and then B assigned to C. This can certainly be certified (if all rule 23 factors are met) as to the class of clients Y who also entered into contracts with A that were assigned to Dand then C. What if some contracts (between Z and A) were assigned by B to D? Can X be the class rep in an action against A, B, C, and D, or must someone from Z show up as a plaintiff?)
Oops, typo: Y had contracts with A that went to B and then C. Z had contracts with A that went to B and then D.
143: No. If you're handing out Social Security pension benefits, you have the choice of giving them to everyone or no one (in the two relevantly distinguished classes). Both are practical ways to stop discriminating. You can't do that in the UofT context -- if affirmative action is discrimination, they only have room to stop it by applying the higher, rather than the lower, of the alternative standards.
144 -- stop it with all that sexy talk, you devil.
Hey, in trying to do a little belated reading on Fisher I discovered that conservatives also really hate the Texas 10% plan, and are fearful that an opinion might indicate something that the 10% plan is constitutional. Clearly, the 14th Amendment prohibits a plan in which the top 10% of high school students in a state are admitted, in part to have a high school that reflects diversity. If it's a policy designed to remedy poverty or compensate for centuries of white supremacy, it must be unconstitutional! QED.
Oh I'm sorry in 148 I meant "libertarians" not "conservatives." Libertarians: Always monsters, never forget it.
144: Huh. I'd think you would need a D-qualified class rep, wouldn't you?
The 10% plan is clever, isn't it. It only has an effect so long as the schools are of unequal quality.
Hey, this seems appropriate: President Obama speaks Spanish for the first time in a new ad aimed at DREAMers.
148, 151: As I remember it, when UT adopted the 10% plan in response to Hopwood, the folks who were committed to keeping UT as white as possible concern trolled the idea that white parents would game the system by sending their mediocre kid to a shitty HS where they'd have a much better chance of making the top 10% and wouldn't that just be awful if some white kids unfairly get in? To which the response was, you mean we'll get a little bit more widespread distribution of middle class white kids with the kinds of parents who are that invested in their kids' educations and opportunity and this is supposed to be a bad thing? (Of course as far as I know this gaming did not happen on any significant basis.)
150 - That;s what I say. And most judges agree. Not all, though.
146
143: No. If you're handing out Social Security pension benefits, you have the choice of giving them to everyone or no one (in the two relevantly distinguished classes). Both are practical ways to stop discriminating. You can't do that in the UofT context -- if affirmative action is discrimination, they only have room to stop it by applying the higher, rather than the lower, of the alternative standards.
You could admit everyone by the lower standard. This would cost money but so does giving the pension benefit to everyone. Or you could adopt the lower standard and then select the class by lot (which is basically what is being done for fireman hiring in some cities). And you are ignoring the text of the decision which says you still have standing even if you will not benefit from a decision in your favor because the stricter standard will be adopted.
151
The 10% plan is clever, isn't it. It only has an effect so long as the schools are of unequal quality.
Where quality is defined as the quality of the students (not of the teachers or physical facilities).
The 10% plan is very clever.
I just heard someone from The Century Foundation (who're they? I forget) averring that we may not really need race-based affirmative action any more in order to achieve diversity, so much as socioeconomically-based affirmative action. Witness the results of UT's 10% plan, he said, which produced x% racial diversity even without the policy later adopted that takes race into account. (The counter to this was that an x% black and latino student population was still just one quarter of the state's racial spread.)
All I could think was: hey, if we went to socioeconomically-based affirmative action, you'd have court cases forthwith claiming that this discriminated against the well-off.
I have only skimmed the thread, but I have to take exception to the claims that sral was making above, that students admitted to highly selective schools via affirmative action are harmed by it. This is claimed all the time, but there's really no basis for it at all. You can show that the black students at selective schools have worse outcomes than the white students at the same schools, but that's not the comparison you want -- you want to compare the black students at selective schools to what _those_ students would have accomplished had they gone to less selective schools. And those comparisons always show that getting admitted to a good school is (shocking!) good for you, or at least has no effect one way or the other.
"The Shape of the River" presents the evidence for undergraduate admissions. This paper (there's a link there, but it isn't showing up on preview -- here's the URL: http://lawreview.uchicago.edu/issues/archive/v75/75_2/Rothstein75-2.pdf) does it for law school admissions, and also has a discussion of what's wrong with the comparison between whites and black students at the same school.
Spysander gets it right. sral should admit s/he was wrong.
Of course, what this stuff really comes down to is: may we, as a society, adopt policies for the greater good that may (may!) disadvantage certain individual citizens (white ones, in this case)? Obviously there's no one answer; public policy and political science are all about picking through the question issue by issue. Equally obviously, we as a society do this all the freaking time. There is virtually no public policy that's going to safeguard the interests of all.
158
I just heard someone from The Century Foundation (who're they? I forget) averring that we may not really need race-based affirmative action any more in order to achieve diversity, so much as socioeconomically-based affirmative action. ...
The effects would be quite different. Race based affirmative action favors rich blacks, socioeconomically based affirmative action would favor poor whites.
159
... And those comparisons always show that getting admitted to a good school is (shocking!) good for you, or at least has no effect one way or the other.
Getting admitted to a good school isn't good for you if you can't handle the work and flunk out. This may not happen on average but I am pretty sure it does happen in individual cases.
if we went to socioeconomically-based affirmative action, you'd have court cases forthwith claiming that this discriminated against the well-off.
But "the well-off" aren't a legally protected class, and discrimination against them is perfectly legal.
Race based affirmative action favors rich blacks
Cite? Bear in mind that UT's admission policy accounting for what they call the Personal Achievement Index also includes socioeconomic status.
Getting admitted to a good school isn't good for you if you can't handle the work and flunk out
If you flunk out of Harvard you can still go to your state flagship state university. If out of the group of those who were admitted because of affirmative action most graduate, and most of the rest go on to finish the university they would have attended without affirmative action then it's highly likely that the average outcome is better than it would have been without affirmative action.
socioeconomically based affirmative action would favor poor whites
At the top private schools you already have affirmative action for both poor whites and the overlapping set of those from geographically underrepresented areas.
If out of the group of those who were admitted because of affirmative action most graduate, and most of the rest go on to finish the university they would have attended without affirmative action then it's highly likely that the average outcome is better than it would have been without affirmative action.
This is overly optimistic in terms of what happens when you flunk out of a big state school.
163: My legal skills are a blunt instrument at best. You tell me: could someone make a case that they'd been unlawfully excluded because others of a lower SES had been considered and accepted instead?
I didn't think white people were a legally protected class in any case.
you want to compare the black students at selective schools to what _those_ students would have accomplished had they gone to less selective schools. And those comparisons always show that getting admitted to a good school is (shocking!) good for you, or at least has no effect one way or the other.
I don't have time research this, but I was under the impression this was thought to be maybe wrong: that studies had been done comparing the performance of black students at selective schools against black students who were accepted to those same selective schools but ultimately attended less selective ones (which was supposed to be a control), and that those studies showed modestly better outcomes overall (graduation rates, grades, jobs) for the students who went to the less selective schools.
Now, the study I'm thinking of might have been discredited, or outdated or whatever, but that was a research finding at one point, I'm fairly sure, which was fairly widely publicized, and could well be what JBS is thinking of.
I didn't think white people were a legally protected class in any case.
It's not that white people are a "protected class", it's that any racial discrimination is generally illegal.
You tell me: could someone make a case that they'd been unlawfully excluded because others of a lower SES had been considered and accepted instead?
I'm not sure what the basis of their claim would be.
If you flunk out of Harvard you showed a really impressive stick-to-it-ivness because that is not easy to do from what I hear.
170 last -- The right-libertarians seem to be putting together an argument that measures designed to improve socio-economic diversity (such as the 10% plan) are in fact covert measures to implement racial diversity, and are therefore unconstitutional. I find this argument laughable as a matter of constitutional law, but I'll bet that if there's a reversal in Fisher you'll see the argument made in the US Supreme Court and at least Scalia, Thomas, and Alito will agree.
170.last: I guess the basis of the claim would be that if SES hadn't been considered, they might (might, not would) have been accepted. In parallel to the Fisher case as I currently understand it: the very policy is discriminatory against the upper-SES.
Am I being terribly dense here? It seems to me that the argument would be quite parallel.
172: that makes sense. But obviously it's not a claim that the well-off qua well-off were being discriminated against.
173: It's okay to discriminate on the basis of SES. Otherwise we couldn't have graduated income tax rates. It's not okay to discriminate on the basis of race. Or gender. Or religion. Or age. It's still okay in most states to discriminate on the basis of sexual orientation. Etc.
Yes, you're generally free to discriminate against the well-off under the United States Constitution, except to the extent it interferes with their first amendment right to fund corporate speech, their fifth amendment rights against takings, their due process right to be free of a punitive damages award, etc., etc.
By the way, can we get some kind of consensus on the pronunciation of "amicus"?
Because "a-meek-us" is really not working for me. I struggle.
Speaking as someone who's written a few, they're generally correctly pronounced "waste of time."
Not always.
164
Cite? Bear in mind that UT's admission policy accounting for what they call the Personal Achievement Index also includes socioeconomic status.
Then it isn't purely race based.
If you implement race based affirmative action by taking a certain number of the top black scorers these students will mainly come from rich black families because rich blacks score better than poor blacks just as rich whites score better than poor whites.
Here is a NYT article about how the primary beneficiaries of affirmative action at Harvard (and other elite schools) are not poor American blacks.
So it's like voting. Pronounced "votting".
169
Now, the study I'm thinking of might have been discredited, or outdated or whatever, but that was a research finding at one point, I'm fairly sure, which was fairly widely publicized, and could well be what JBS is thinking of.
sral cited such studies not me. There have been studies making such claims but I am somewhat suspicious of them as being a bit too convenient for foes of affirmative action. I do believe affirmative action can be harmful in individual cases.
181: No, correct, it is not. The UT system isn't purely race-based. It just takes race into account as one of a dozen or so factors. Sorry I used the term "race-based affirmative action" upthread. The Fisher case invites that framing, and indeed it's being presented as a case of just that, but that is not what the UT system represents.
178: Sorry, you can't get a consensus. Honestly, even people who do this for a living are all over the map. I tried to figure out how I say it, but (1) I can't transcribe phonetics, and (2) I'm pretty sure I'm not even consistent. You might as well go read this old William Safire column. Of his two options, I'm closer to "AM-uh-kuss," I think.
The situation is much the same for "certiorari," I'm afraid.
Oh, god, I hate law Latin. I always start going for the full-scale high-school Latin pronunciation, and then flinch and try to figure out how you pronounce it in English. Sub judice kills me -- I have no idea how I should say it.
For amicus, I do something like am-EE-kus.
165
If you flunk out of Harvard you can still go to your state flagship state university. ...
This seems optimistic. Flunking out can be rather traumatic and financially costly as well. Also you may not flunk out quickly but spend 5 or 6 years failing to graduate.
And marginal black students admitted to lower tier law schools are likely to incur large nondischargable student loans without a realistic chance at a law career. Hard to see how they are better off. Of course these schools aren't a great deal for their white students either but they probably are a bit more likely to succeed.
My favorite is the Texas pronunciation of "voir dire" as "vore dyer."
185: AM-uh-kuss. That seemed obvious to me the first time I saw the word in writing. Does a couple of years of Latin in high school have something to do with my instinct? Not sure. This a-MEE-kuss business seems just clearly wrong and horrible.
But wait, LB thinks Latin training dictates am-EE-kus?
Guess I'll read the Safire.
164
Cite? ...
Another article about who is benefiting from affirmative action:
In a 2004 interview Professor Henry Louis Gates Jr., director of the W.E.B. Du Bois Institute for African and African-American Research at Harvard, told the London Observer, "The black kids who come to Harvard or Yale are middle class. Nobody else gets through."
...
In his 2005 book The Chosen, Professor Jerome Karabel of the University of California at Berkeley has produced credible research showing that most minority students at Harvard, Princeton, and Yale come from high-income families. Karabel notes that the Big Three's preference for legacy admissions, both black and white, tends to limit economic diversity on campus.
...
University of Illinois professor Walter Benn Michaels put the question most bluntly when he said, "When students and faculty activists struggle for cultural diversity, they are in large part battling over what skin color the rich kids have."
From the Safire column:
I take refuge in Francis Bacon's 1612 comment, ''Those that ingage Courts in quarrels of Jurisdiction are not truly Amici Curiae, but Parasiti Curiae.''
Those that? that? Oh good lord.
180.1 -- I got Justice Thomas to ask a question at oral argument with my first amicus. Should have given up then.
"Shouldn't this guy be wearing pants?"
I am curious if ending AA will mean that a bunch of mediocre white guys who thought they would benefit will discover to their chagrin that their preferred university now is offering "their" spot to the vastly more qualified Asian-American student who hadn't been let in to keep the numbers balanced.
I have to confess, I do rather enjoy watching this part.
"Redweld." Excellent. I'd been hearing and saying it as "redwell."
I have also heard arguments that affirmative action benefits the entire study body, since they are then exposed to a diversity of backgrounds and encounters stories of different life experiences.
Actually I do believe most people want to be exposed to this kind of diversity. It's fun. They just don't want it to interfere with more important things, like getting into college.
I take refuge in Francis Bacon's 1612 comment, ''Those that ingage Courts in quarrels of Jurisdiction are not truly Amici Curiae, but Parasiti Curiae.''
Nine years before his conviction for bribery.
One has to wonder how all this will fit in with the inevitable push to affirmative action for male students in undergraduate admissions.
That was me. Presumably they'll decide later on that since discrimination based on gender is held to a lower standard than discrimination based on race, they'll be able to decide that affirmative action for men is ok, but not for black people.
Preferential male admission already happens, often on the ground that it preserves the school's status.
Spysander gets it right. sral should admit s/he was wrong.
Perhaps, after I read the book, if I find it convincing. This would be like, if in one of Shearer's race discussions, he posted a link to The Bell Curve, and someone chimed in saying, everyone who disagrees with Shearer should now admit they're wrong. As I said about 100 comments before, I'll read the book when I've got some time. Why I should admit I'm wrong because there exists at least one book disagreeing with my recollection of studies isn't clear to me.
Sral, I don't particularly care one way or the other whether you admit that you are wrong. But you are either mis-remembering the studies or remembering low-quality studies that rely on misleading comparisons.
I should stop here, since I'm sock-puppeting a bit -- I am quite close to this area, but prefer not to have this thread show up if someone googles my name. But really, The Shape of the River is the single most authoritative work in this area, and if you haven't read it there is something to be said for deferring to those who have in describing what the research shows.
To speak up for sral, I remember reading the studies s/he is talking about, and I don't recall them being obvious nonsense, although I wasn't convinced by them. I'm not recalling enough specifics to google easily for a link, but they're not 'Bob's House Of Anti-Affirmative Action Propaganda', there was some kind of respectable academic research going on, IIRC.
Bob's House Of Anti-Affirmative Action Propaganda
And Japanese Cinema
Sorry, that's "Sander" not "Sanders".
Your linked article says:
The elimination of race-based admissions policies, the authors write, would lead to a 63 percent decline in black matriculants at all law schools and a 90 percent decline at elite law schools, the paper says. Even if some positive impact took place in the experience of black students who did enroll, there would be at least a 50 percent reduction in the production of black lawyers, they write.
Interesting. I would never have guessed at that kind of impact.
There's probably something bad that might happen to counter-balance that 50% reduction in lawyering.
211: To be fair, a lot of the harm is lawyer-on-lawyer crime.
159
The link you give isn't working. I found this which appears to be a version of the same paper. I didn't read the whole thing but noticed a couple of points.
The data in this paper (as well as the Sander paper it is responding to) are from 1991. This is not ideal since as I understand it law school has become a much worse deal for students since then.
The paper assumes you want to maximize production of black lawyers and counts affirmative action as a success if it increases their number regardless of the costs to black law students. So it says (p. 8):
... In the absence of affirmative action, the fraction of black law students who drop out of law school or fail the bar exam would decrease substantially. But this effect would derive primarily from the exclusion of many black students who have low probabilities of success; there is only weak evidence that any individual black law student's prospects would be improved. Without preferences, the production of black lawyers--measured either in raw numbers or as a percentage of law school applicants--would fall dramatically.
But of course it is a total disaster for the individual black law student who drops out or fails the bar. Saying that admitting marginal black law students increases their chances of becoming lawyers is little consolation if it decreases their chances at success in life overall which will not benefit from large undischargable student debt from a failed attempt to become a lawyer. And even many students who pass the bar do not have successful legal careers.
159: From p. 69 of the version you link:
"Given our findings, it is reasonable to ask whether law schools serve students' best interests by admitting applicants with low academic credentials, or whether these students would be better off not attending law school. Unfortunately, our analysis cannot answer this question. For a student with a relatively low probability of success, entering law school can be seen as entering a lottery. Whether this lottery is a sensible choice for any particular student depends entirely on her other options. A student with undesirable non-law-school options may well find law school a worthwhile risk. In any event, there is no reason to think that legal educators are in better positions to make this decision than are students themselves. To facilitate informed decisions, however, students should perhaps be provided with more complete information about the success rates of entering law students with various credentials."
In other words, you are right that it might be better for some students admitted via AA not to attend at all. But evaluating that requires knowing what the alternative is. And no one has analyzed that question. So while one can't rule out that AA hurts such students, neither is there any evidence that it does.
206: You are right: There are studies that appear respectable showing what sral is claiming, including by Sander. But they are not very good studies, for reasons discussed in the Chicago Law Review article.
214
... Whether this lottery is a sensible choice for any particular student depends entirely on her other options. A student with undesirable non-law-school options may well find law school a worthwhile risk. ...
This seems disengenuous. Unless the alternative is going to prison practically anything is going to be better than going to law school for several years, failing to become a lawyer while accumulating $100,000 or more of nondischargable student debt and then facing the same undesirable options. Working at McDonalds would be better.
... In any event, there is no reason to think that legal educators are in better positions to make this decision than are students themselves. ...
And this is a total evasion of the moral responsibility educators should have towards their students. Third rate law schools are making a very good living encouraging naive prospective students to make a very bad investment. Pretending that this is somehow in their student's best interest is self-serving nonsense.
217
In other words, you are right that it might be better for some students admitted via AA not to attend at all. But evaluating that requires knowing what the alternative is. And no one has analyzed that question. So while one can't rule out that AA hurts such students, neither is there any evidence that it does.
This is silly. AA is enabling them to make a disasterous choice. This is evidence that AA is hurting them. If AA was allowing them to become Supreme Court justices you wouldn't say "while one can't rule out that AA helps such students, neither is there any evidence that it does" because of some theoretical possibility that they might have done even better without AA.
AA is enabling them to make a disasterous choice
Maybe if somebody somewhere had given James a leg up he would have learned to spell.
218
Maybe if somebody somewhere had given James a leg up he would have learned to spell.
Not one of my strong points to be sure. Make that disastrous.