I rather agree with your point about private institutions being able to do what they want. However, given the amount of government money that goes to private schools and the way that the government forces private institutions to behave if they accept that money, I think it was the correct decision in the sense that "these are the rules of what happens if you accept government money". See Grove City for an example of a school that eschews all government money due to the legal strings attached to it. If government money is going to have many strings attached (and arguably it should if one wants to maintain the fig leaf over it being blatant robbing Peter to pay Paul) those strings should apply to everyone accepting it. Remove government money and let private schools go nuts.
IMO discrimination by entities that get government funding (or other preferential treatment) should be considered discrimination by the government unless
- the money (or preferential treatment) is given based on entirely objective criteria that don't involve the protected classifications in question (so the government can't reward discrimination covertly or overtly), and
- the criteria don't create excessive barriers to entry into the class that receives the funding (so the government can't fund an existing set of entrenched entities that are known to discriminate, and prevent new competitors from scooping up the students, clients etc. belonging to the disfavored groups while receiving funding on an equal footing).
I think you are both right; 10240 is correct that would be an improvement over the current system, and you are correct that it is only a partial fix. There is only so much you can do to patch a fundamentally flawed system.
Or even better, get the government our of all discrimination practices. Slavery and Jim Crow were especially abhorrent because the government enforced them. Along came the 1960s Civil Rights acts, and instead of just dropping government bigotry, it forbade all bigotry, include by non-government actors. Affirmative action is just more government-enforced racism.
Let the bigots be bigots. Let them put signs on their doors, "No Negroes or Jews or Irish allowed, dogs welcome". I'd rather have them out in the open and know who to avoid. And allow private people to sue them for bigotry other what is on their signs. No sign? No bigotry.
Government is always the problem. Their idea of fixing things by slathering on more bureaucracy is akin to adding new bandaids on top of the old dirty ones. Government Jim Crow was the problem. Adding government affirmative action didn't solve the problem, it just covered it up for a while.
TBH I'd ust like some sort of clean house law / rule, i.e. "the government cannot apply a law to a private party until it follows the rules themselves first and completely". In my experience the most racist discriminatory places you can still find in America are government institutions, they need to clean their own house first and the law should mandate that.
One relevance of the Equal Protection Clause is that the Civil Rights Act is definitely enforced when it comes to discrimination against underrepresented minorities, and enforcing it asymmetrically would be discrimination by the government.
Sex balance for mate search should be a self-solving problem that shouldn't require discrimination. A sex imbalance is only bad for the overrepresented sex: for the underrepresented sex it makes it easier to find mates. *If* mate search at the university is a high enough priority for the members of the overrepresented sex that they'd prefer to have a smaller chance of getting admitted in exchange for having better opportunities if they do get admitted, chances are some of them will also voluntarily go to other universities or other environments that have a more favorable sex balance; while members of the sex that's underrepresented at a given university have an incentive to choose that university.
I think it is the case at present that more women than men satisfy the usual academic criteria for admission, possibly because girls are better than boys at sitting still. If so, you will get an uneven ratio unless you discriminate. In order to go to universities with a more favorable sex balance there have to be some, which requires discrimination in favor of men in admissions.
It's more complicated than that because there are some fields where more men than women are interested in applying and well qualified — I think engineering schools tend to have a high m:f ratio. So a woman who wants a higher ratio can choose to go to a school with a large engineering department. But that seriously restricts her options and only a small number of women can do that.
It may be fine to discriminate, but you shouldn’t be able to deny doing so to your applicants.
It would seem reasonable for private colleges to choose, based on their own criteria, who they accept as students.
At the same time, it seems wrong that they should be able to lie to applicants about their criteria (and therefore wrongfully encourage people they have no intention of letting in to waste their time, money and effort on pointless applications).
Perhaps an issue to be settled in civil courts though.
Yes. I think there have been cases along those lines not on discrimination in admissions but on free speech issues, where a private university was held liable not because it did not have a right to punish student speech it did not like but because it did not have a right to both say it didn't do so and do it, but I don't remember details.
Did Harvard, prior to the litigation, claim not to discriminate on racial grounds in their admissions?
But the fact of preferential admissions never bothered me much because there is competition among colleges and if you are smart but don't get into MIT you get into a close substitute, and if you're not smart, you can still go to college, if that's what you want. The costs to the losers are low, and the benefits to the [student] winners are also low.
What bugged me was that on the face of it was illegal, not on 14th Amendment grounds, or that the Supreme Court gave a sham pass because diversity was a value in itself [Bakke], but on the Civil Rights Act of 1964, as stated in one of the concurring opinions [Gorsuch] in Students for Fair Admissions v. Harvard and cited by you.
If one liked Affirmative Action, one should repeal the Civil Rights Act and let colleges do whatever they please. Alas, this route is now closed.
Many points can be made. My favorite non-made point is that preferring by low income was and is perfectly legal and highly correlated with race, yet it's not sufficient for the racial discriminators.
What bugs me is that allowing discrimination in one direction but not the other is discrimination by the government, a violation of the human right of equality before the law. (I'm a libertarian, though not as radical as David, and I prefer a broad range of freedoms, but I recognize some rights including equality before the law as human rights, which I consider especially important.)
- pretty sure you could fill all top universities with poor Asian students without compromising on academic preparedness (though various types of intellectual diversity would suffer).
- accomplishing this for even one top university with poor black students would be challenging.
The universities don't have to fulfill their racial targets with poor blacks, and I think they mostly don't. Someone at Harvard a year or two back was complaining about how many of their black students were African immigrants rather than Afro-Americans. Smart, well educated blacks are likely to be the children of either middle class Afro-Americans or middle class African immigrants, and that is what the non-racial criteria are selecting for.
Someone should research that and do an article on it, if nobody has.
Why is discriminating on the basis of income perfectly legal despite the disparate impact on different races and despite the clear intent for racial discrimination?
Because the courts haven't declared it illegal yet.
I am perfectly serious. The so-called rule of law that lawyers like to tout is really the rule of lawyers. Learning how much the rule of law depends on its interpretation by lawyers was one of the biggest shocks n my self-education. There is something really wrong with a system where some ordinary Joe can be arrested for something as innocuous as picking up a feather in the forest, only to find out it's a forbidden eagle feather, and convicted by a unanimous jury and send to prison with a huge fine (this may be one of those 5-year $100,000 crimes which is seldom enforced; I do not know), then two years later, an appeals court rules 2-1 to affirm, and two years later again, the Supreme Court reverses 5-4, but by then you're out of prison.
How anyone can pretend that such split decisions make any sense as far as rule of law goes is beyond me. These justices have years to study the issue and immense law libraries and armies of clerks, and they still cannot agree on what laws mean; how can anyone claim the original conviction was valid, even when the jury had to be unanimous?
And that's even if you win on appeal OR the Supreme Court takes your case; plenty of time they just pass even if the case is strong or you give up your right to appeal as a result of legal coercion.
I went through this myself and the three things that shocked me the most were the partiality and outright unprofessionalism of judges (I had always before had at least some respect for them), the utter outright hostility to hearing the truth or facts, and the fact your own defense attorney will actively work against you so it really ends up being the three of them all colluding to convict you. My lawyer literally told me "If you turn down the plea the judge had the magnanimity to order, I will happily ensure you lose when I represent you at trial and the judge has already committed to giving you the max no probation as well for spite for the spurn". I fired him but my subsequent lawyers said the same.
On your validity thing, it's even crazier than that. During my case I had two different judges, three different prosecutors, and seven different defense attorneys and literally not one of them could agree with even one of the other the eleven parties on the basic elements of the crime, the evidentiary standard, or even if I committed a crime. The only thing they universally agreed was I would lose at trial as the state has a 100% (legit, I looked it up) conviction rate for this crime for the past forty years as the jury pool was systemically worthless. I mean that's not even statistically possible in a supposed fair and impartial system with such strong protections as "beyond a reasonable doubt" but nobody in the system finds that odd and in fact, see it as a feature, not a bug. I tried to make void for vagueness argument but my lawyers refused as "that isn't a trial issue" which also blew my mind, like how is it not a trial issue that no one even knows what the law is I'm being convicted of and the response was "we all know individually what the law is, we aren't required to agree with anyone else as those other parties aren't currently part of the case and none of us are required to explain on record what we believe the law to mean to convict you as we aren't on trial"
>I conclude that Harvard, or any other private college, should be free to discriminate for or against blacks, Asians, men [etc]
Not sure. I think there is /some/ scope for a minimal-state libertarian to argue that discrimination should be illegal, for public /and private/ agents. Thus, what's wrong with assault? Or lying? I find the Kantian answer plausible, that (roughly) these actions treat people like things, as objects to be used rather than subjects with their own lives, and that, when such actions result in a "sufficient" level of harm to others, they should be against the law. Even the minimal-state prohibits assault and fraud. Now suppose you think (as I do) that A discriminates against B when A disadvantages B because of B's membership of a group against which A is prejudiced (= A believes that this group deserve less consideration than others, in a sense inconsistent with equal Kantian respect). So defined, I think that discrimination is wrong (I presume you do too?). Further, if this Kantian disrespect results in "sufficient" harm to others—and isn't this likely to be the case when it comes to discrimination in education, employment, accommodation, and suchlike?—then why could it not also be the target of the minimal-state? If sufficiently harmful disrespect is enough to make fraud illegal, then why would it not be enough to make discrimination (so defined) illegal?
Assault injures the victim. Discrimination fails to benefit the victim. We have a right not to be injured, not a right to be benefited. You are defining "harm" as including "not benefiting."
I am not a Kantian. People treat other people as objects in lots of contexts — walking in the street and avoiding both trees and stationary people, for instance.
>Assault injures the victim. Discrimination fails to benefit the victim. ... You are defining "harm" as including "not benefiting."
I understand benefit and harm relative to a moralized baseline, in particular relative to the situation that would have obtained had neither person wronged the other. In my view (though perhaps not yours), if I am prejudiced against you (in the sense that many find morally objectionable, even if they do not give it a Kantian spin), then I wrong you, even if I do nothing else. Hence, benefit or harm is to be defined relative to a situation in which I am /not/ prejudiced against you. Now, it may well be that, if I had not been prejudiced against you, I would have given you the job, etc. Relative to /that/ outcome, you /have/ been harmed, when I actually refuse to do so merely because of my prejudice.
> I am not a Kantian. People treat other people as objects in lots of contexts
Ah, the dangers of slogans! Let me try to reformulate my argument without Kant. I assume that a person who assaults and defrauds others has a certain morally objectionable attitude towards them (that a person who walks around others need not have to their human obstacles). I called it Kantian (dis)respect for persons, but we can argue about how it is to be more precisely identified. I also assume that (some) discrimination is morally wrong ("some", since not everything called "discrimination" is actually wrong), and that this too comes with a distinctive morally objectionable attitude towards others. I assume this, but—to ask again—do you, and, if so, can you identify this attitude more precisely, if you do not like my characterization? Now, the key premise of my argument is that the immoral attitude of the defrauding assaulter is relevantly similar to the immoral attitude of the (morally objectionable) discriminator, and so, to repeat, since sufficiently harmful "disrespect" (or whatever you want to call it) is enough to make fraud illegal, it should be enough to make discrimination illegal.
Harvard would have 1% black based on merit (let’s just use the SAT here). It’s 14%. Clear violation. They proved it in the case.
We’ve all read The Bell Curve, we get why.
So just shut Harvard down. Declare that it is no longer allowed to do business. Shut its doors. Confiscate its buildings and endowment. Sell it off and send everyone in America a “reparations” check.
You do this once and people will change their tune.
If you don’t like civil rights law I suspect this would be a positive step on that front too. Right now civil rights law is seen as a one way street and the side benefiting from it supports it. If it’s a two way street all of a sudden it’s not a fun game anymore.
Support for civil rights would collapse once it’s no longer an effective grift.
It would be sufficient for your purpose to shut Harvard down for a year, making it clear that it gets to operate next year only if its admissions pattern is not discriminatory. We don't generally punish people, which is what you propose, for doing something in the past that was only discovered to be illegal recently, we just make them stop doing it.
I'm just trying to imagine the statement from the President of Harvard.
1) We've been discriminating against Whites and Asians on purpose for decades, which was easily proven by the Supreme Court case and its quite obvious we knew we were doing it the whole time (our denials are quite frankly disgustingly dishonest and sickening to any remotely impartial observer).
We reject none of the reasons for why we took these actions, all of which were legitimate and all criticisms basically just racist propaganda.
2) Having been given clear orders by the Supreme Court, we defied them entirely and openly.
3) Having been threatened in our finances, we have decided to abandon #2, while acknowledging no good reason for doing so. We do so only in the hopes of getting our money back from the evil doers, whose ruling is illegitimate and which we hope to overturn by replacing them on the court as soon as possible.
We will use all legal recourse to resist, and predict eventual victory and a return to our old way of doing things, and we will use this endowment to pursue those ends.
...
I mean these people needed a knockout fight to demote a Harvard president that more or less thought killing the Jews was reasonable to a mere $900,000 a year position. I'm sure a slap on the wrist will change their worldview, despite clearly and openly defying the court.
If you're seriously proposing that, then I ask why you don't start with government itself, far more bigoted in general than any single university or other institution.
That isn't the outcome you would get in a well functioning free market, because students are an input to education as well as consumers of education. Hence it pays a university that wants to produce an education that smart people will want to buy to discriminate in admissions in favor of smart applicants.
Universities that want to do affirmative action could game the objective criterion-based enforcement.
Create a test that effectively emulates a lottery: for instance a short multiple choice test with questions so arcane nobody can do better than randomly. Then the racial distribution that results if the university used this test as the "objective criterion" approximately corresponds to the distribution of the applicant pool; not necessarily the same as the general population, but often closer than the merit-based results would be, and it can be massaged by encouraging students of particular races to apply even if they don't have a chance. Then the resulting distribution is what the actual distribution will be compared to.
Actually, of course, the university doesn't use this silly test, it scores applicants based on merit and whatever it would normally take into account, and then adds preferential treatment to reach the distribution it has to.
(EDIT: It doesn't have to be this blatant, they can just find some objective test on which there's little racial difference—there surely are some, even if not very important ones—, and then actually use criteria on which there are big racial differences, and apply affirmative action to compensate.)
Good point. I think to prevent that you would need some limit on permitted objective criteria to ones plausibly related to non-racial goals of the university.
Do you believe it was immoral when it was passed, or that it became immoral based on how it has been interpreted and implemented?
Or was it immoral when first implemented, but less immoral than reality at that time (and so in some sense a lesser/necessary evil), but as Justice O’Connor said of affirmative action that eventually it wouldn’t be needed and in your view the time has long since passed?
I think I can probably agree with any answer *other than* it was purely and simply immoral the day it became law. But your view is the more interesting one, and grounded in a lot more political philosophy than mine, so I’m genuinely curious.
I think it was immoral from the start — I agreed at the time with Barry Goldwater's position. On the other hand Richard Epstein, who is a libertarian and a very prominent legal scholar, has argued that it was justified because what appeared to be private action in the South wasn't, was enforced by informal state action at the local level. There was no law against letting blacks and whites both into your restaurant but if you did you might get a visit from the health inspector or have difficulty getting a liquor license (my example of his point — I don't remember what his examples were).
Yes I am very familiar with the Epstein position here. I’ve been persuaded by it. Without knowing the intimate details, I agree with conventional wisdom that certainly at the time it was a good/necessary thing writ large.
Even as I agree with you that NOW it is for the most part a net bad thing with respect to private action.
Even though I don’t pretend to understand, even leaving political realities aside, what the ~20% or so of it that should remain in place re: private actors.
I rather agree with your point about private institutions being able to do what they want. However, given the amount of government money that goes to private schools and the way that the government forces private institutions to behave if they accept that money, I think it was the correct decision in the sense that "these are the rules of what happens if you accept government money". See Grove City for an example of a school that eschews all government money due to the legal strings attached to it. If government money is going to have many strings attached (and arguably it should if one wants to maintain the fig leaf over it being blatant robbing Peter to pay Paul) those strings should apply to everyone accepting it. Remove government money and let private schools go nuts.
IMO discrimination by entities that get government funding (or other preferential treatment) should be considered discrimination by the government unless
- the money (or preferential treatment) is given based on entirely objective criteria that don't involve the protected classifications in question (so the government can't reward discrimination covertly or overtly), and
- the criteria don't create excessive barriers to entry into the class that receives the funding (so the government can't fund an existing set of entrenched entities that are known to discriminate, and prevent new competitors from scooping up the students, clients etc. belonging to the disfavored groups while receiving funding on an equal footing).
It can't be done. There are always workarounds. The only real solution is for the government to stop giving money, period.
Of course society is long past the point where any solution is possible, either my cutting the Gordian knot or your two points.
I think you are both right; 10240 is correct that would be an improvement over the current system, and you are correct that it is only a partial fix. There is only so much you can do to patch a fundamentally flawed system.
Or even better, get the government our of all discrimination practices. Slavery and Jim Crow were especially abhorrent because the government enforced them. Along came the 1960s Civil Rights acts, and instead of just dropping government bigotry, it forbade all bigotry, include by non-government actors. Affirmative action is just more government-enforced racism.
Let the bigots be bigots. Let them put signs on their doors, "No Negroes or Jews or Irish allowed, dogs welcome". I'd rather have them out in the open and know who to avoid. And allow private people to sue them for bigotry other what is on their signs. No sign? No bigotry.
Government is always the problem. Their idea of fixing things by slathering on more bureaucracy is akin to adding new bandaids on top of the old dirty ones. Government Jim Crow was the problem. Adding government affirmative action didn't solve the problem, it just covered it up for a while.
TBH I'd ust like some sort of clean house law / rule, i.e. "the government cannot apply a law to a private party until it follows the rules themselves first and completely". In my experience the most racist discriminatory places you can still find in America are government institutions, they need to clean their own house first and the law should mandate that.
One relevance of the Equal Protection Clause is that the Civil Rights Act is definitely enforced when it comes to discrimination against underrepresented minorities, and enforcing it asymmetrically would be discrimination by the government.
Sex balance for mate search should be a self-solving problem that shouldn't require discrimination. A sex imbalance is only bad for the overrepresented sex: for the underrepresented sex it makes it easier to find mates. *If* mate search at the university is a high enough priority for the members of the overrepresented sex that they'd prefer to have a smaller chance of getting admitted in exchange for having better opportunities if they do get admitted, chances are some of them will also voluntarily go to other universities or other environments that have a more favorable sex balance; while members of the sex that's underrepresented at a given university have an incentive to choose that university.
I think it is the case at present that more women than men satisfy the usual academic criteria for admission, possibly because girls are better than boys at sitting still. If so, you will get an uneven ratio unless you discriminate. In order to go to universities with a more favorable sex balance there have to be some, which requires discrimination in favor of men in admissions.
It's more complicated than that because there are some fields where more men than women are interested in applying and well qualified — I think engineering schools tend to have a high m:f ratio. So a woman who wants a higher ratio can choose to go to a school with a large engineering department. But that seriously restricts her options and only a small number of women can do that.
It may be fine to discriminate, but you shouldn’t be able to deny doing so to your applicants.
It would seem reasonable for private colleges to choose, based on their own criteria, who they accept as students.
At the same time, it seems wrong that they should be able to lie to applicants about their criteria (and therefore wrongfully encourage people they have no intention of letting in to waste their time, money and effort on pointless applications).
Perhaps an issue to be settled in civil courts though.
Yes. I think there have been cases along those lines not on discrimination in admissions but on free speech issues, where a private university was held liable not because it did not have a right to punish student speech it did not like but because it did not have a right to both say it didn't do so and do it, but I don't remember details.
Did Harvard, prior to the litigation, claim not to discriminate on racial grounds in their admissions?
I agree with virtually every word.
But the fact of preferential admissions never bothered me much because there is competition among colleges and if you are smart but don't get into MIT you get into a close substitute, and if you're not smart, you can still go to college, if that's what you want. The costs to the losers are low, and the benefits to the [student] winners are also low.
What bugged me was that on the face of it was illegal, not on 14th Amendment grounds, or that the Supreme Court gave a sham pass because diversity was a value in itself [Bakke], but on the Civil Rights Act of 1964, as stated in one of the concurring opinions [Gorsuch] in Students for Fair Admissions v. Harvard and cited by you.
If one liked Affirmative Action, one should repeal the Civil Rights Act and let colleges do whatever they please. Alas, this route is now closed.
Many points can be made. My favorite non-made point is that preferring by low income was and is perfectly legal and highly correlated with race, yet it's not sufficient for the racial discriminators.
What bugs me is that allowing discrimination in one direction but not the other is discrimination by the government, a violation of the human right of equality before the law. (I'm a libertarian, though not as radical as David, and I prefer a broad range of freedoms, but I recognize some rights including equality before the law as human rights, which I consider especially important.)
Regarding the non-made point:
- pretty sure you could fill all top universities with poor Asian students without compromising on academic preparedness (though various types of intellectual diversity would suffer).
- accomplishing this for even one top university with poor black students would be challenging.
The universities don't have to fulfill their racial targets with poor blacks, and I think they mostly don't. Someone at Harvard a year or two back was complaining about how many of their black students were African immigrants rather than Afro-Americans. Smart, well educated blacks are likely to be the children of either middle class Afro-Americans or middle class African immigrants, and that is what the non-racial criteria are selecting for.
Someone should research that and do an article on it, if nobody has.
Why is discriminating on the basis of income perfectly legal despite the disparate impact on different races and despite the clear intent for racial discrimination?
Because the courts haven't declared it illegal yet.
I am perfectly serious. The so-called rule of law that lawyers like to tout is really the rule of lawyers. Learning how much the rule of law depends on its interpretation by lawyers was one of the biggest shocks n my self-education. There is something really wrong with a system where some ordinary Joe can be arrested for something as innocuous as picking up a feather in the forest, only to find out it's a forbidden eagle feather, and convicted by a unanimous jury and send to prison with a huge fine (this may be one of those 5-year $100,000 crimes which is seldom enforced; I do not know), then two years later, an appeals court rules 2-1 to affirm, and two years later again, the Supreme Court reverses 5-4, but by then you're out of prison.
How anyone can pretend that such split decisions make any sense as far as rule of law goes is beyond me. These justices have years to study the issue and immense law libraries and armies of clerks, and they still cannot agree on what laws mean; how can anyone claim the original conviction was valid, even when the jury had to be unanimous?
And that's even if you win on appeal OR the Supreme Court takes your case; plenty of time they just pass even if the case is strong or you give up your right to appeal as a result of legal coercion.
I went through this myself and the three things that shocked me the most were the partiality and outright unprofessionalism of judges (I had always before had at least some respect for them), the utter outright hostility to hearing the truth or facts, and the fact your own defense attorney will actively work against you so it really ends up being the three of them all colluding to convict you. My lawyer literally told me "If you turn down the plea the judge had the magnanimity to order, I will happily ensure you lose when I represent you at trial and the judge has already committed to giving you the max no probation as well for spite for the spurn". I fired him but my subsequent lawyers said the same.
On your validity thing, it's even crazier than that. During my case I had two different judges, three different prosecutors, and seven different defense attorneys and literally not one of them could agree with even one of the other the eleven parties on the basic elements of the crime, the evidentiary standard, or even if I committed a crime. The only thing they universally agreed was I would lose at trial as the state has a 100% (legit, I looked it up) conviction rate for this crime for the past forty years as the jury pool was systemically worthless. I mean that's not even statistically possible in a supposed fair and impartial system with such strong protections as "beyond a reasonable doubt" but nobody in the system finds that odd and in fact, see it as a feature, not a bug. I tried to make void for vagueness argument but my lawyers refused as "that isn't a trial issue" which also blew my mind, like how is it not a trial issue that no one even knows what the law is I'm being convicted of and the response was "we all know individually what the law is, we aren't required to agree with anyone else as those other parties aren't currently part of the case and none of us are required to explain on record what we believe the law to mean to convict you as we aren't on trial"
Agree 1000% with your last paragraph.
>I conclude that Harvard, or any other private college, should be free to discriminate for or against blacks, Asians, men [etc]
Not sure. I think there is /some/ scope for a minimal-state libertarian to argue that discrimination should be illegal, for public /and private/ agents. Thus, what's wrong with assault? Or lying? I find the Kantian answer plausible, that (roughly) these actions treat people like things, as objects to be used rather than subjects with their own lives, and that, when such actions result in a "sufficient" level of harm to others, they should be against the law. Even the minimal-state prohibits assault and fraud. Now suppose you think (as I do) that A discriminates against B when A disadvantages B because of B's membership of a group against which A is prejudiced (= A believes that this group deserve less consideration than others, in a sense inconsistent with equal Kantian respect). So defined, I think that discrimination is wrong (I presume you do too?). Further, if this Kantian disrespect results in "sufficient" harm to others—and isn't this likely to be the case when it comes to discrimination in education, employment, accommodation, and suchlike?—then why could it not also be the target of the minimal-state? If sufficiently harmful disrespect is enough to make fraud illegal, then why would it not be enough to make discrimination (so defined) illegal?
Assault injures the victim. Discrimination fails to benefit the victim. We have a right not to be injured, not a right to be benefited. You are defining "harm" as including "not benefiting."
I am not a Kantian. People treat other people as objects in lots of contexts — walking in the street and avoiding both trees and stationary people, for instance.
>Assault injures the victim. Discrimination fails to benefit the victim. ... You are defining "harm" as including "not benefiting."
I understand benefit and harm relative to a moralized baseline, in particular relative to the situation that would have obtained had neither person wronged the other. In my view (though perhaps not yours), if I am prejudiced against you (in the sense that many find morally objectionable, even if they do not give it a Kantian spin), then I wrong you, even if I do nothing else. Hence, benefit or harm is to be defined relative to a situation in which I am /not/ prejudiced against you. Now, it may well be that, if I had not been prejudiced against you, I would have given you the job, etc. Relative to /that/ outcome, you /have/ been harmed, when I actually refuse to do so merely because of my prejudice.
> I am not a Kantian. People treat other people as objects in lots of contexts
Ah, the dangers of slogans! Let me try to reformulate my argument without Kant. I assume that a person who assaults and defrauds others has a certain morally objectionable attitude towards them (that a person who walks around others need not have to their human obstacles). I called it Kantian (dis)respect for persons, but we can argue about how it is to be more precisely identified. I also assume that (some) discrimination is morally wrong ("some", since not everything called "discrimination" is actually wrong), and that this too comes with a distinctive morally objectionable attitude towards others. I assume this, but—to ask again—do you, and, if so, can you identify this attitude more precisely, if you do not like my characterization? Now, the key premise of my argument is that the immoral attitude of the defrauding assaulter is relevantly similar to the immoral attitude of the (morally objectionable) discriminator, and so, to repeat, since sufficiently harmful "disrespect" (or whatever you want to call it) is enough to make fraud illegal, it should be enough to make discrimination illegal.
This is easy.
Harvard would have 1% black based on merit (let’s just use the SAT here). It’s 14%. Clear violation. They proved it in the case.
We’ve all read The Bell Curve, we get why.
So just shut Harvard down. Declare that it is no longer allowed to do business. Shut its doors. Confiscate its buildings and endowment. Sell it off and send everyone in America a “reparations” check.
You do this once and people will change their tune.
If you don’t like civil rights law I suspect this would be a positive step on that front too. Right now civil rights law is seen as a one way street and the side benefiting from it supports it. If it’s a two way street all of a sudden it’s not a fun game anymore.
Support for civil rights would collapse once it’s no longer an effective grift.
It would be sufficient for your purpose to shut Harvard down for a year, making it clear that it gets to operate next year only if its admissions pattern is not discriminatory. We don't generally punish people, which is what you propose, for doing something in the past that was only discovered to be illegal recently, we just make them stop doing it.
Perhaps.
I'm just trying to imagine the statement from the President of Harvard.
1) We've been discriminating against Whites and Asians on purpose for decades, which was easily proven by the Supreme Court case and its quite obvious we knew we were doing it the whole time (our denials are quite frankly disgustingly dishonest and sickening to any remotely impartial observer).
We reject none of the reasons for why we took these actions, all of which were legitimate and all criticisms basically just racist propaganda.
2) Having been given clear orders by the Supreme Court, we defied them entirely and openly.
3) Having been threatened in our finances, we have decided to abandon #2, while acknowledging no good reason for doing so. We do so only in the hopes of getting our money back from the evil doers, whose ruling is illegitimate and which we hope to overturn by replacing them on the court as soon as possible.
We will use all legal recourse to resist, and predict eventual victory and a return to our old way of doing things, and we will use this endowment to pursue those ends.
...
I mean these people needed a knockout fight to demote a Harvard president that more or less thought killing the Jews was reasonable to a mere $900,000 a year position. I'm sure a slap on the wrist will change their worldview, despite clearly and openly defying the court.
If you're seriously proposing that, then I ask why you don't start with government itself, far more bigoted in general than any single university or other institution.
If only education could be allocated the same way as most other scarce resources: by going to the highest bidder. Then all this drama would be moot.
That isn't the outcome you would get in a well functioning free market, because students are an input to education as well as consumers of education. Hence it pays a university that wants to produce an education that smart people will want to buy to discriminate in admissions in favor of smart applicants.
Universities that want to do affirmative action could game the objective criterion-based enforcement.
Create a test that effectively emulates a lottery: for instance a short multiple choice test with questions so arcane nobody can do better than randomly. Then the racial distribution that results if the university used this test as the "objective criterion" approximately corresponds to the distribution of the applicant pool; not necessarily the same as the general population, but often closer than the merit-based results would be, and it can be massaged by encouraging students of particular races to apply even if they don't have a chance. Then the resulting distribution is what the actual distribution will be compared to.
Actually, of course, the university doesn't use this silly test, it scores applicants based on merit and whatever it would normally take into account, and then adds preferential treatment to reach the distribution it has to.
(EDIT: It doesn't have to be this blatant, they can just find some objective test on which there's little racial difference—there surely are some, even if not very important ones—, and then actually use criteria on which there are big racial differences, and apply affirmative action to compensate.)
Good point. I think to prevent that you would need some limit on permitted objective criteria to ones plausibly related to non-racial goals of the university.
“ The Court’s verdict was correct, as Gorsuch argued, in the application of civil rights law to Harvard but that law is, in my view, incorrect.”
Incorrect as in “I think that it’s a bad (public policy) law”, or incorrect as in “I think it’s an unconstitutional law”?
Are you arguing that Harvard should not have to follow a law you believe to be bad, or that the bad law should be removed from the books?
I think it is an immoral law, a law that violates rights, so should be removed from the books.
Thx.
Do you believe it was immoral when it was passed, or that it became immoral based on how it has been interpreted and implemented?
Or was it immoral when first implemented, but less immoral than reality at that time (and so in some sense a lesser/necessary evil), but as Justice O’Connor said of affirmative action that eventually it wouldn’t be needed and in your view the time has long since passed?
I think I can probably agree with any answer *other than* it was purely and simply immoral the day it became law. But your view is the more interesting one, and grounded in a lot more political philosophy than mine, so I’m genuinely curious.
I think it was immoral from the start — I agreed at the time with Barry Goldwater's position. On the other hand Richard Epstein, who is a libertarian and a very prominent legal scholar, has argued that it was justified because what appeared to be private action in the South wasn't, was enforced by informal state action at the local level. There was no law against letting blacks and whites both into your restaurant but if you did you might get a visit from the health inspector or have difficulty getting a liquor license (my example of his point — I don't remember what his examples were).
Thx.
Yes I am very familiar with the Epstein position here. I’ve been persuaded by it. Without knowing the intimate details, I agree with conventional wisdom that certainly at the time it was a good/necessary thing writ large.
Even as I agree with you that NOW it is for the most part a net bad thing with respect to private action.
Even though I don’t pretend to understand, even leaving political realities aside, what the ~20% or so of it that should remain in place re: private actors.
I agree with your take, private, they should be able to do what they want, no matter how asinine.
You possibly disagree with my take, that in this day and age caring, responsible parents should not allow their children attend university!
I think that depends on the parents, the children, and the university.