Re: Guest Post: JRoth

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She graduated from LSU more than 3 years ago. It's a travesty that her case is continuing.


Posted by: CharleyCarp | Link to this comment | 12-14-15 7:30 AM
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I'm not interested enough in white people to read all of this.


Posted by: Moby Hick | Link to this comment | 12-14-15 7:45 AM
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I think we should replace college with a series of badges you earn by traveling around on journey. Like Pokemon training.


Posted by: Moby Hick | Link to this comment | 12-14-15 7:50 AM
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3 isn't such a bad idea, actually. Disrupt academia!


Posted by: togolosh | Link to this comment | 12-14-15 8:05 AM
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I think we should replace college with a series of badges you earn by traveling around on journey. Like Pokemon training.

Sounds like a Dungeons and Dragons campaign actually.


Posted by: ajay | Link to this comment | 12-14-15 8:24 AM
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To be clear, on the narrow issue of "should we describe her as 'unqualified'?", I almost definitely say no: it's probably not true in any meaningful way, and I don't think that needs to be said to make our point. IMO the clear winning argument (rhetorically, I don't know/care about the legalities) is this: "5,000 other Texans just as qualified as Fisher also applied. 2,000 got in. Why does she think she should have been one of the 2,000? Because she's white. That's her whole case."

This sounds right to me -- though, to the extent there's a distinction, I'm closer to LB's position because I think, from a burden of proof point of view, there's no need to argue that she was unqualified, she has to affirmatively argue that she was harmed.

Also, not having followed the case closely, this was a good article:

In 2008, the year that Fisher applied, 80 percent of entering freshmen were selected through the Top Ten Percent Law, according to UT court filings. Since Fisher didn't make the 10 percent cut-off, her application--along with all the other applicants in that category--was tossed in a pile. After a holistic review of her application, which considered a number of factors, including race and gender, UT rejected it.

The holistic review process, as described by UT in court filings, is "intended to identify and reward students whose merit as applicants was not adequately reflected by their class rank and test scores." UT reviews a candidate's race and gender along with leadership, extracurricular activities, languages spoken at home, socio-economic status, and other factors.

While it's true that UT admitted dozens of candidates that were either equal to or "less qualified" than Fisher--strictly in terms of test scores and grades--only five of those "less qualified" candidates were Black or Latino. Forty-two were white.

Posted by: NickS | Link to this comment | 12-14-15 8:41 AM
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The Texas 10% criteria must really deeply annoy the sorts of people who pick school districts to avoid having anybody poor or disadvantaged in them. I suppose that's really what this lawsuit is about. You go through all the trouble to pick a school district with the highest test scores and it bites you in the ass when it comes to getting into college.


Posted by: Moby Hick | Link to this comment | 12-14-15 8:44 AM
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7: I went to hs with someone who went and lived with relatives in Germany for a year so she would be in competition with the class behind us, not our class. And this wasn't even a "10% of the class" thing -- more like, "There are two other people who are definitely going to Harvard and they're not taking 3."


Posted by: oudemia | Link to this comment | 12-14-15 9:02 AM
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she has to affirmatively argue that she was harmed

In fairness, hanging out with the breaux-dudes of LSU does really suck.


Posted by: Stanley | Link to this comment | 12-14-15 9:05 AM
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8: I understand the impulse. My own high school class had 17 people in it and I was second by a very, very small amount and would have been first in all the other classes. Still, I didn't go to court about it.


Posted by: Moby Hick | Link to this comment | 12-14-15 9:16 AM
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Ack! I didn't know this was going up. I mostly can't participate until after 2 pm, but I do have this to add:

The fact that selecting among applicants isn't a pure, rational, objective ranking is neither here nor there. It would be really weird for a valedictorian with a perfect SAT score* and some extracurriculars to be denied admission to a mid-level state school, right? Does anyone want to argue that's not true?

If it's true, then you're conceding that it's possible to talk about more or less qualified applicants, and so can we please not get bogged down in pretending that every applicant is equally qualified, and the job of admissions is to sort puzzle pieces to create an ideal student body?

Again, I'm not saying that some perfect ranking is possible (or desirable); I'm saying that the pretense that every applicant who can (probably) complete the coursework should be admitted is neither factual or helpful. It's not factual for reasons in my first para, and it's not helpful because it doesn't describe anyone's intuitive understanding of meritocratic processes. Meritocracy is almost certainly bullshit, but, again, that's not an argument we're winning right now. So it circles back to, "Do you want to feel good about yourself, or do you want to win?"

*I don't even know if that's 1600 or 2400 these days


Posted by: JRoth | Link to this comment | 12-14-15 9:19 AM
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8 is amazing to me. I was just happy to be 17th out of 358, because it meant I was in the top 5%, but hadn't expended any extra effort to do so. I especially relished it because our class had been above 360 in previous years, so 17th went from penultimate slot in the top 5% to ultimate.


Posted by: JRoth | Link to this comment | 12-14-15 9:23 AM
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Back to the argument, I guess my point is that IMO it's accurate, fair, and advantageous to describe her as "undistinguished", perhaps adding "with unremarkable qualifications." If we want to win this argument, I think it's important to emphasize that her only claim to admission is her whiteness, and emphasizing that she obviously was good enough to attend seems like a really odd first step towards that goal.


Posted by: JRoth | Link to this comment | 12-14-15 9:26 AM
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What I get stopped on is that if we look at her academic record, and think of her as anything other than fully qualified for admission, we've got a problem when we think of the admitted students (most of them white) with a less distinguished record. I really think to defend AA you need to draw a sharp line between qualified for admission and entitled to admission.


Posted by: LizardBreath | Link to this comment | 12-14-15 9:35 AM
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If it's true, then you're conceding that it's possible to talk about more or less qualified applicants, and so can we please not get bogged down in pretending that every applicant is equally qualified, and the job of admissions is to sort puzzle pieces to create an ideal student body?

This seems very muddled. Conceding that "more qualified" has clear meaning when comparing the high-end (those that clearly get admitted) and low-end (i.e., those who don't get admitted) doesn't mean conceding it when comparing the vast middle.

Everyone knew who the best student in my MA program was. That doesn't mean an ordinal ranking of all the students has validity.

And her argument is that she would have gotten admitted in a race-blind, grades-and-test scores admission process. Even if this isn't true (as per 6), you can't rely on it as an argument if you want to defend AA in general terms. You have to defend the right of colleges to use factors other than grades and test scores.


Posted by: Criminally Bulgur | Link to this comment | 12-14-15 9:35 AM
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1. Ginsburg asked what remedy did she want at this late date. The answer was she wanted a refund of her $100 application fee!


Posted by: md 20/400 | Link to this comment | 12-14-15 9:41 AM
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low-end (i.e., those who don't get admitted)

S/b "clearly don't get admitted"


Posted by: Criminally Bulgur | Link to this comment | 12-14-15 9:43 AM
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11: You can concede that there are clear cases of being qualified by certain criteria without it being clear about what to do in the borderline cases.

14: I think the line is there, isn't it? Top 10% of high school class = entitled to admission. The rest of the slots are filled out with people who are qualified overall but didn't make the first cutoff. So I agree with you, but I don't see how it helps, because we're talking about whether she, a borderline case, was comparable with the other borderline cases who were admitted. It seems she is. But that's just necessary for the case having any legs at all, isn't it?


Posted by: Cala | Link to this comment | 12-14-15 9:46 AM
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Let's all post our class rankings!


Posted by: fake accent | Link to this comment | 12-14-15 9:46 AM
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You have to defend the right of colleges to use factors other than grades and test scores.

They do, but only if the potential students are Asian.


Posted by: Moby Hick | Link to this comment | 12-14-15 9:46 AM
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8: Did it work?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 12-14-15 10:10 AM
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I also want to know if it worked.


Posted by: lurid keyaki | Link to this comment | 12-14-15 10:15 AM
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15.4: This a court of law. You absolutely don't have to defend AA on general grounds -- you can fight on narrow procedural grounds. In this particular case, the only reason it's reached the Supreme Court is that they're looking to gut AA, so general grounds may be the best play, but in an ordinary case she would have lost on the facts.


Posted by: Walt Someguy | Link to this comment | 12-14-15 10:23 AM
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21: The poor thing had to go to Stanford, if I recall.


Posted by: | Link to this comment | 12-14-15 10:34 AM
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It's a decent example of how standing rules get manipulated by courts both to kick out cases they don't want to hear and to hear cases they probably shouldn't. Which is why I favor a generally broad standing doctrine -- less open to inevitable manipulation -- and closer attention to deciding cases only on their facts (combined with careful attention to what the facts actually are on the record actually before the court). Current US Supreme Court doctrine and practice is pretty much the opposite of that.

But those are just general pesonal crank musings. In this particular case, it's clearly moot and there's no even semi-plausible judicial remedy she could now obtain for the alleged harm, so I think the case should have gone away long ago for that reason alone.


Posted by: R Tigre | Link to this comment | 12-14-15 10:34 AM
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This a court of law.

I thought this was about how we should be talking on Facebook. Sure, the court should dismiss the case because she ain't too fly for a white gal.


Posted by: Criminally Bulgur | Link to this comment | 12-14-15 10:37 AM
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And her argument is that she would have gotten admitted in a race-blind, grades-and-test scores admission process. Even if this isn't true (as per 6), you can't rely on it as an argument if you want to defend AA in general terms. You have to defend the right of colleges to use factors other than grades and test scores.

There's no way for her to know that, though, since if the only things colleges can go by are grades and test scores, and there are more people who qualify on those grounds than there are spots for students, there's only coin-flipping left to determine who gets in. And she can't possibly argue that the coins would definitely have flipped in her favor.


Posted by: nosflow | Link to this comment | 12-14-15 10:47 AM
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The notion of a meritocracy entitled to rule (or even to educational preference) by virtue of inherent talent is almost as bullshit as the notion that there should be a Second Estate of warrior-nobles entitled to rule fiefs and peasants by virtue of their heritage, breeding, and inherent nobility. That's my view anyway. But it's safe to say the USSCT won't issue a ruling on that basis.


Posted by: R Tigre | Link to this comment | 12-14-15 10:48 AM
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Maybe she can argue that if systematic racism benefits other people, why shouldn't she?


Posted by: Moby Hick | Link to this comment | 12-14-15 10:49 AM
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I don't get how she can say she's qualified by straight grade-test criteria unless she knows the numbers for all applicants. Assuming you don't normalize across different high schools, sure you can rank those ordinally, and "qualified" is being at or above rank N where N is the number of college spots. That's a stupid way to do it but if that's what she thinks the system should be I don't think she passed under those criteria either.


Posted by: SP | Link to this comment | 12-14-15 11:02 AM
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The notion of a meritocracy entitled to rule (or even to educational preference) by virtue of inherent talent is almost as bullshit as the notion that there should be a Second Estate of warrior-nobles entitled to rule fiefs and peasants by virtue of their heritage, breeding, and inherent nobility

Halfordismo, of course, believes that the Second Estate of warrior-nobles are entitled to rule fiefs and peasants by virtue of their own courage, dedication and general outrageous awesomeness, which must be proved and re-confirmed constantly.


Posted by: ajay | Link to this comment | 12-14-15 11:05 AM
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Wrong. Under Halfordismo, you are entitled to rule by virtue of the whims of the monarch, me, who in turn is guided only by the 8 Founding Principles, which only I know.


Posted by: Roberto Tigre | Link to this comment | 12-14-15 11:13 AM
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Will you be the monarch, or more of an éminence grise type?


Posted by: nosflow | Link to this comment | 12-14-15 11:16 AM
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Oh duh you just said you'd be the monarch. Nevermind!


Posted by: nosflow | Link to this comment | 12-14-15 11:16 AM
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You just violated Principle 1 of the 8 Founding Principles, recognition of who is in charge.


Posted by: Roberto Tigre | Link to this comment | 12-14-15 11:19 AM
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Shouldn't you keep the nature of the violations secret? Now we all know the first Founding Principle.


Posted by: nosflow | Link to this comment | 12-14-15 11:25 AM
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Or do you? Not gonna say more, but Principle 7 totally destroys your argument in 36.


Posted by: Roberto Tigre | Link to this comment | 12-14-15 11:33 AM
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At that moment nosflow was enlightened.


Posted by: ajay | Link to this comment | 12-14-15 11:40 AM
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Which, it strikes me, works just as well as an all-purpose New Yorker cartoon caption as "Christ, what an asshole".


Posted by: ajay | Link to this comment | 12-14-15 11:40 AM
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This seems very muddled. Conceding that "more qualified" has clear meaning when comparing the high-end (those that clearly get admitted) and low-end (i.e., those who don't get admitted) doesn't mean conceding it when comparing the vast middle.

But I saw people at the other place approvingly linking and saying, in so many words, that "qualified" isn't even a relevant term wrt admissions. That's what I'm frustrated by, because A. it's clearly not true, and B. you instantly lose the argument with anyone who isn't squarely in your camp, because it sounds absurd, which suggests that your end goal is so absurd you can only get there with absurd arguments.

I don't feel as if acknowledging that qualifications exist is somehow giving up the ground on which AA rests.

As I keep seeing, Fisher is kind of the best test case AA proponents could hope for, but you have to engage with her as she exists.

We've had this discussion before: while for the sake of your own intellectual training (as it were), you're obligated to engage with the strongest counterarguments, but you're not obligated to actually do a better job of presenting your opponent's case for them. If the Right wants to destroy AA by deploying a flawed figure, then you shouldn't be silent about the flaws, let alone emphasize that the flaws aren't even there.


Posted by: JRoth | Link to this comment | 12-14-15 2:59 PM
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And here's another thing: Lemieux calls it The "Qualifications" Dodge. What does that phrasing echo? The Competence Dodge. But the Competence Dodge was about people on the wrong side of history trying to distract from that wrongness by pointing to very real flaws. In this case, the people pointing up Fisher's poor qualifications are on the right side of AA.

Arguably this is just infelicitous/poorly considered phrasing by a guy who loves him some overwrought phrasing, but I think it's telling about how muddled his logic is.


Posted by: JRoth | Link to this comment | 12-14-15 3:02 PM
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Hey, the poor guy just lost his job.


Posted by: heebie-geebie | Link to this comment | 12-14-15 3:29 PM
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I don't feel as if acknowledging that qualifications exist is somehow giving up the ground on which AA rests.

Comity


Posted by: Criminally Bulgur | Link to this comment | 12-14-15 3:44 PM
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I don't feel as if acknowledging that qualifications exist is somehow giving up the ground on which AA rests.

It's not whether qualifications exist, it's whether more or less qualified is a meaningful way to rank marginal applicants. Fisher was qualified for admission to UT -- there were people with qualifications like hers who were admitted and they did fine. Calling her 'unqualified' as an explanation for why it was right not to have admitted her defines everyone 'less qualified' than she is as someone who shouldn't have been admitted.

And implicitly, calling her 'unqualified' says that as between any two candidates, you can meaningfully rank their qualifications, and there's an injustice being done if the 'most qualified' candidate isn't selected. And that's giving up the ground on which AA rests.


Posted by: LizardBreath | Link to this comment | 12-14-15 3:50 PM
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So much of life is lived within the margin of error of the things we can measure.


Posted by: Moby Hick | Link to this comment | 12-14-15 4:08 PM
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42: I actually had a moment's hesitation there.

44: I've said all along that I don't like "unqualified" because it doesn't seem to be true. It's the leap from "Fisher had the [bare] qualifications for admission" to "'Qualification' isn't a relevant term in discussing college admission choices."

there's an injustice being done if the 'most qualified' candidate isn't selected. And that's giving up the ground on which AA rests.

If you're telling people that "qualifications" have nothing to do with college admission, you've lost them. I think that talking about Fisher's qualifications is, in fact, an excellent way to explain why AA is in fact just.

But maybe what I'm objecting to isn't what anyone is saying.


Posted by: JRoth | Link to this comment | 12-14-15 4:49 PM
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44.3: What does that actually mean? If we don't argue about the fundamentals of AA this one time, that's it, and we never get another chance? The facts are that she can't demonstrate that without AA she would have gotten into UT, so she's just wasted everybody's time. When the anti-AA forces find somebody who can plausibly argue that they would have gotten in, then they can sue.

And the fact that it's so hard to find such a case is telling. For marginal candidates, it is a many-way tie for equally qualified candidates. By explicitly looking at diversity, the university ensures it doesn't subconsciously break that tie in favor of white people.


Posted by: Walt Someguy | Link to this comment | 12-14-15 4:54 PM
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And implicitly, calling her 'unqualified' says that as between any two candidates, you can meaningfully rank their qualifications,

No, it doesn't.


Posted by: nosflow | Link to this comment | 12-14-15 5:12 PM
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More fully, calling her "unqualified" says that a distinction can be made between candidates who are qualified and candidates who are not qualified. It does not at all imply that any two candidates can have their qualifications ranked, since it doesn't imply the existence of any finer gradations than "qualified" and "unqualified", so that if two candidates are both qualified or both unqualified there's no saying which is morequalified.


Posted by: nosflow | Link to this comment | 12-14-15 5:15 PM
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You may as well say that a species gives birth to live young implies that as between any two species, you can meaningfully rank how much they give birth to live young.


Posted by: nosflow | Link to this comment | 12-14-15 5:17 PM
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The implicitly in that sentence was doing a lot of work -- possibly too much.

Calling her "unqualified" because her grades and test scores were not such as to compel UT to admit her, implies that ranking applicants in order by grades and test scores is a meaningful way of distinguishing the deservingness of marginal applicants to be admitted. Her grades and test scores were in fact good enough that she probably would have managed fine at UT -- the only sense in which she was unqualified was that there were enough applicants with better grades and test scores to fill the school.

Someone who couldn't read would be unqualified for admission without needing to think about relative merit, but to call Fisher unqualified I think you need ranking.


Posted by: LizardBreath | Link to this comment | 12-14-15 7:23 PM
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UT here I come!


Posted by: Opinionated Rabbit | Link to this comment | 12-14-15 7:25 PM
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Also, JRoth -- I feel like we're talking at cross purposes. You're disagreeing with Lemeiux about something. But his position is that she isn't unqualified for admission and it's rhetorically bad to describe her as such, and you seem to agree with that. At which point I'm not clear what you're disagreeing with.


Posted by: LizardBreath | Link to this comment | 12-14-15 7:26 PM
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Right back where I started from.


Posted by: Moby Hick | Link to this comment | 12-14-15 7:27 PM
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49 confuses me. 50 does also, but I'm ignoring it because it's an analogy. Given the obvious inaccuracies in measuring whatever it is we measure when deciding if people get into college, I think that saying somebody is "unqualified" says something bad about her (that her scores/grades/whatever are bad enough that even accounting for measurement error, we are reasonably certain she is not qualified) without implying that you can always make a distinction between qualified and unqualified candidates. Calling somebody "Unqualified" means "There's a gray area, but this person sucks enough to be below it."


Posted by: Moby Hick | Link to this comment | 12-14-15 7:37 PM
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Is that in the OP? Is just remembered that I didn't read it.


Posted by: Moby Hick | Link to this comment | 12-14-15 7:40 PM
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I'm pretty sure no one in this thread is actually disagreeing on anything meaningful, but it's awfully confusing.


Posted by: teofilo | Link to this comment | 12-14-15 7:42 PM
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Right. And Fisher, herself, is a gray area candidate if there is a gray area. She probably wouldn't have been admitted in the absence of affirmative action, but there are admitted candidates with worse numbers than hers. So if she's unqualified, that means you can slice qualified/unqualified right down to the marginal candidate, with no or almost no gray area, and at least some unqualified applicants were admitted.


Posted by: LizardBreath | Link to this comment | 12-14-15 7:42 PM
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58-->55.


Posted by: LizardBreath | Link to this comment | 12-14-15 7:42 PM
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57: Measuring social constructs usually is.


Posted by: Moby Hick | Link to this comment | 12-14-15 7:45 PM
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55: ok, I'll accept that. It doesn't help LB's claim, though.


Posted by: nosflow | Link to this comment | 12-14-15 7:45 PM
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Well, I'm also confused by her:

...the only sense in which she was unqualified was that there were enough applicants with better grades and test scores to fill the school.

But I figured I just missed something earlier in the thread.


Posted by: Moby Hick | Link to this comment | 12-14-15 7:49 PM
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And implicitly, calling her 'unqualified' says that as between any two candidates, you can meaningfully rank their qualifications,

No, it doesn't.

Hey wait, sure it does. It just means you can only do it in a very quantized fashion; for any two candidates you can say that they are equally qualified or that one is more qualified than the other. However continuous your measurement scheme, there will be surely be case where two candidates are equivalently qualified -- this does not make it the case that it is impossible to compare candidates in general. That would require a scheme where everybody was qualified or unqualified. With two levels you still have signal.


Posted by: Sifu Tweety | Link to this comment | 12-14-15 7:50 PM
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Also, they're still going to overlook some bad grades if they need a running back.


Posted by: Moby Hick | Link to this comment | 12-14-15 7:54 PM
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Hey wait, sure it does. It just means you can only do it in a very quantized fashion; for any two candidates you can say that they are equally qualified or that one is more qualified than the other.

Well, ok (obviously, since I went on to say exactly that), but I thought it was pretty clear that that isn't what LB meant by "meaningfully rank their qualifications".


Posted by: nosflow | Link to this comment | 12-14-15 8:03 PM
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Arrrgh. The anger rises, billowing, burning, searing ....

If this entitled fool has a case, then what about all the Jews who were denied admission to the Ivies for being Jewish? And East and South Asians these days? As my old MathSci prof told us one day, "you could have made up the entire entering class at Rice with pre-meds from Stuyvesant". 70s-80s, that was.

Shit. White privilege indeed.

And maybe Fat Tony needs to watch some KKK newsreels from early in the 20th century, when they wanted to sting up Papists like him, fer cryin' out loud.


Posted by: Chet | Link to this comment | 12-14-15 8:08 PM
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I don't agree with 63. I certainly wouldn't want to argue that a) there was some general, uni-dimensional measure of UT-readiness or b) that if such a thing existed a single test and grades from widely disparate high schools could measure it with anything at all like the precision you'd need have two categories unless "equally qualified" is supposed to include a relatively large percentage of paired comparisons where you can't make a meaningful distinction.


Posted by: Moby Hick | Link to this comment | 12-14-15 8:10 PM
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I mean, they should at least make people take the SAT three or four times plus have school exams graded by external people like at Hogwarts.


Posted by: Moby Hick | Link to this comment | 12-14-15 8:13 PM
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I don't really understand this thread either, but it seems like a lot of the confusion here is a pretty general confusion that people have about "mixed motive" discrimination cases. In tons of race discrimination cases, the plaintiff says "you had racist criteria for hiring! civil rights violation!" the defendant says "well maybe we were racist, but even assuming that's true you can't show that you would have been hired even if we hadn't been racist." There are different rules for how to deal with this in different settings.

I think that the general rule in Constitutional claims for race discrimination is that you have to show, as a Plaintiff, that absent the unconstitutional action you would have been (hired, admitted, whatever) in order to collect after-the-fact damages. But, you don't have to make that showing in order to move for an injunction before the fact -- i.e., if you can show that the government is doing something racist that negatively affects your chances for something (say, getting hired) you can still move to enjoin it, because you're injured by having your chances reduced, even if you can't affirmatively show that you would have been hired anyway absent the unconstitutional thing.

(For Title VII, which is the federal statute that generally prohibits racial discrimination in hiring, the test is different, because Congress explicitly made it different -- there, you only have to show that improper discrimination was a "motivating factor" for a decision, even if other factors also played a role.).

Note that IANA employment L and this isn't really my area at all. But "was this discrimination even if other things might have motivated the action" is an issue in pretty much every discrimination case.

I haven't followed Fisher closely at all. But I believe she still claims that she can prove but-for causation, i.e. that the University would have admitted her but-for the race policy. The University denies that, but those facts and that issue hasn't been decided by a court of law (not totally sure why) and isn't before the Supreme Court.


Posted by: R Tigre | Link to this comment | 12-14-15 8:26 PM
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I believe you all are fishing for the term "partially ordered set". Sometimes called a poset.


Posted by: heebie-geebie | Link to this comment | 12-14-15 8:27 PM
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I feel like some people are using qualified to mean eligible, but also I feel confused.


Posted by: fake accent | Link to this comment | 12-14-15 8:29 PM
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You may as well say that a species gives birth to live eligibility implies that as between any two species, you can meaningfully rank how much eligibility they give to live young.


Posted by: heebie-geebie | Link to this comment | 12-14-15 8:34 PM
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And now I've read the Lemieux post, and the JRoth OP thing again, and it seems like there's just a factual confusion by JRoth about what's at stake at this stage of the case. At some point, if Fisher is to prevail and get paid, Fisher would (I believe) have to show that she would have been admitted to UT absent the affirmative action policy. I don't think she's denying that eventually she'd have to do that.

But that issue isn't before the Supreme Court right now. And even if it was, the question wouldn't be whether she was "qualified" for UT Austin (she, as everyone seems to agree, was almost certainly in the class of people who met the basic criteria to be "qualified" for a spot) but whether she can show that she would have been admitted absent UT's affirmative action policy.


Posted by: R Tigre | Link to this comment | 12-14-15 8:40 PM
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What if she can show that she would have been 47% likely to have been admitted if there were not affirmative action policy? Could UT then counter that maybe she still have a 47% change of being admitted even with AA. She just didn't get lucky.


Posted by: Moby Hick | Link to this comment | 12-14-15 8:42 PM
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Wait, so what issue is before the Supreme Court right now?


Posted by: teofilo | Link to this comment | 12-14-15 8:43 PM
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Anyhow, the procedural problem with the case isn't whether she can show injury or causation, it's that it is clearly moot. It's a mystery why the SCT has just seemed to ignore that fact. She can't possibly collect damages based on having to go to LSU instead of UT, and I think her main claim is for her application fee for UT, which she would have had to pay even if she had been admitted to UT.


Posted by: R Tigre | Link to this comment | 12-14-15 8:43 PM
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The Wikipedia page for poset is far more confusing than this thread.


Posted by: Moby Hick | Link to this comment | 12-14-15 8:44 PM
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I thought her argument was more along the lines of, even to be judged according to race-based criteria amounts to racial discrimination and is therefore unconstituational blah blah blah? That is, she's not arguing that she would have been admitted absent UT's AA policy, but that she suffered an injury during the applicant-judging process, because she was judged according to criteria that took account of her race?

Anyway, she sounds clueless and entitled and whiny, but Lemieux is exactly right about how not to frame this.


Posted by: Just Plain Jane | Link to this comment | 12-14-15 8:48 PM
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74 -- I mean, who knows, since this case is clearly a circus, but I think she'd have to get more granular than that -- the University could put on evidence showing that they'd have made the same decision regardless, and she'd have to show that wasn't true. This is the key case.

75 - I think her main assertion in this round is that the lower court failed to apply "strict scrutiny" to UT's affirmative action policy as the SCT said it must do the last time the case came before them (this is a term of art meaning "the government must show things are really really necessary because we are in a Constitutional danger zone"). That is, the lower court found that even if she could show that she would have been admitted absent the affirmative action policy, UT's policy was still constitutional under "strict scrutiny" because it was necessary to achieve diversity goals. She says that's not true and that UT can't meet that test. But I really haven't been following this closely, haven't read the briefs, etc.


Posted by: R Tigre | Link to this comment | 12-14-15 8:52 PM
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78 -- no, to collect damages you have to do more than that and show but-for causation. That was the decision reached in, amazingly, an affirmative action case arising from Texas. So I'm pretty sure that she's still asserting that she actually would have been admitted but for the affirmative action program.

For an injunction, the standard is different -- if the college is still making its decision, you could probably enjoin it from using unconstitutional race criteria even without showing that you personally would be admitted absent the racist criteria, because you're being judged according to improper criteria and that itself is a harm.


Posted by: R Tigre | Link to this comment | 12-14-15 8:56 PM
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Does "scrutiny" mean that they should have first asked about rejecting Satan?


Posted by: Moby Hick | Link to this comment | 12-14-15 8:57 PM
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Yes.


Posted by: Roberto Tigre | Link to this comment | 12-14-15 9:00 PM
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and show but-for causation.

Well then, this case is even more frivolous than I had realized. And the fact that the Supremes agreed to hear it twice is just ridiculous. It almost looks as though some element on the court is almost inviting an opportunity to further gut AA admissions programmes.


Posted by: Just Plain Jane | Link to this comment | 12-14-15 9:04 PM
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Thinking back to my law class, this sounds kind of like disparate impact to me. Perhaps they're trying to sneak that principle through the back door as something that can be used for white people without calling it that?


Posted by: Minivet | Link to this comment | 12-14-15 10:43 PM
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You don't need a disparate impact theory when a university os literally saying I AM MAKING THIS DECISION EXPLICITLY BASED ON RACE.


Posted by: R Tigre | Link to this comment | 12-14-15 11:34 PM
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