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.
I agree, but would note that the logic that government funding should come with strings attached in practice leading to many more strings than just that…
Why not simply give that money to students to use for their education and decide which institution to give it to rather than directly and arbitrarily to institutions? If they do any nonsense, students going elsewhere should trigger immediate self correction.
You aren't wrong. The primary issue is that there will be some string. You say "give that money to students to use for their education", but notice that is one string up from "give every kid money when they turn 18 to do whatever they want with." So there is the restriction on use, because we don't want just a massive transfer but transfer if it goes to a use we like.
So the next question is "Ok, the recipient has to use it for education. What's education?" Strip clubs are very educational, some might say, but I don't think that is going to fly. So now government has to define what it considers educational. Trade schools? Traditional colleges? What about intern programs? Apprenticeships? Military training? A series of focused skill camps?
What counts as a trade school or traditional college, even? I used to teach college... can I start a college in my living room and have students use government money to pay? Can the church down the road?
You see the problem? Once government subsidizes a thing, it has to define what, exactly, that thing is and what it is not. Otherwise it is just handing out money. In the process of defining the thing, however, it necessarily is eliminating many other viable versions of the thing that will have to compete against a hugely cheaper version.
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.
On the grounds of the decision, the majority dealt with that in a footnote (footnote 2 of the majority opinion): “‘We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.’ Gratz v. Bollinger, 539 U.S. 244, 276, n. 23 (2003). Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.”
So as far as their verdict is concerned Harvard is free to continue to discriminate provided it stops accepting federal funds. Since no party raised that question, we don't know what would happen if they did.
It seems to me that one of the ways libertarianism, as commonly advocated, misses the boat is that it reflexively responds to any complaint about unfair or unfriendly practices by business owners by telling the complainer he should go into competition with them and see if he can do better -- even if that line of business is so constrained by regulations or quotas that that is effectively impossible. Where this is so, I believe that business should be required to serve all comers. This certainly describes Harvard.
What's more, a good case could be made in constitutional law that the federal government has no authority to regulate or fund education at all outside of DC and the military. Education is not one of the powers enumerated in Article I, Section 8, unless it were included in the general welfare clause, and I think Federalist #41 disposes of that idea. Yet they do it anyway. Perhaps we should just regard the Constitution as good for nothing but bumwad and have done.
No! Libertarianism is fine. You yourself stated the problem: "even if that line of business is so constrained by regulations or quotas that that is effectively impossible."
…and further, the line of business that is post- secondary education is NOT in fact constrained by regulations or quotas that it is effectively impossible to compete with them, so the premise is wrong here.
(Now if the topic were competing for federal research grant money, then indeed there well might be a case for RatMan29’s claim…)
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"
“ 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.”
Pedantic point here, but the Supreme Court, as an appeals court, does not issue verdicts. Verdicts are the findings in trial courts. Rather the Supreme Court issues opinions/decisions.
>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.
It sounds as though you are claiming a property right to the inside of my head, a right to have me believe certain things, in particular not to be prejudiced — that's the situation relative to which you have been harmed. But you don't have a right for me to believe things, only not to do things that harm you. I would be better off if various people loved me and did things for me — that doesn't mean that failing to love me wrongs me.
There are lots of ways in which people believe things I think they shouldn't believe. In some cases I might be better off if they didn't believe those things — for instance if a religious believer whose store I patronize it didn't shut it for his sabbath. That doesn't give me a right to have him keep the store open.
I find it hard to think of examples of discrimination that is morally wrong because it is discrimination. If you are dying of thirst and I refuse to give you water that is wrong, but whether it is wrong does not depend on whether my reason is your race. Believing that some ethnicity is stupid or wicked isn't morally wrong, it's just wrong because it is believing something that isn't true. If you believe something that is true and act on it that is not morally wrong, so far as I can see, even if it results in your treating people of different ethnicities differently.
There are certain acts which I am normally free to take or not take, such as selling you something. Civil rights law holds that I have to take an action I don't want to if my reason for not taking it is one the state disapproves of, may not take an action I do want to if the state disapproves of my reason for taking it. That seems to me inconsistent with freedom.
>It sounds as though you are claiming a property right to the inside of my head, a right to have me ... not to be prejudiced
I certainly do not make any such claim. In my view, it is your (moral) right to believe that some people are "more equal" than others, and even to express it in public, but this is still false to believe, and—you will disagree here—it is /immoral/ to believe, and it should not be your (legal) right to act on this belief if doing so causes sufficient harm to others.
>I find it hard to think of examples of discrimination that is morally wrong because it is discrimination.
Aha! It seems I presumed wrong. My view is precisely the opposite, that some examples of discriminatory actions are morally wrong precisely because they /are/ discriminatory in the sense I defined, viz they are based on a belief that (as I put it previously) one group deserve less consideration than others, or (as I have just put it) they "more equal" than the others. This is a key difference between us. Sure, if discrimination is /not/ wrong in itself, then my argument fails.
>Believing that some ethnicity is stupid or wicked isn't morally wrong, it's just wrong because it is believing something that isn't true. If you believe something that is true and act on it that is not morally wrong, so far as I can see
But why can't a belief be both false /and/ wrong? To believe that men are "more equal" than women is not only false, but it is also sexist, and if sexist, wrong. Ditto for race. As the for the second sentence ... Pick some action A you, David, think is wrong. Then, your sentence implies, if I believe that A is /not/ wrong and act on it then my doing A is /not/ wrong. Which is it?
You seem to want to think that sincere—and, let's add, intellectually conscientious—belief in moral claims exempts you from moral criticism if those beliefs happen to be false. But this is just to suppose that, when it comes to judging you morally, your intellectual conscientiousness trumps the horribly mistaken moral conclusions you have drawn. As much as I admire intellectual conscientiousness, I don't see why that should be so.
Where not selling your services to someone, or not buying his services, counts as causing harm. That is treating you as a slave, someone who owes service to other people and so wrong them if he does not provide it.
"You seem to want to think that sincere—and, let's add, intellectually conscientious—belief in moral claims exempts you from moral criticism if those beliefs happen to be false."
That is not what I am saying. On the contrary, in my view for someone to enforce nondiscrimination law by suing someone for refusing to sell to him is wrong even if he, like you, believes it is right.
The point isn't that a belief can't be both false and wrong, it is that holding a belief is not morally wrong even if the belief is mistaken. Thinking my neighbor is a murderer is not morally wrong even if he isn't. Shooting him on the theory that he is going to murder me is. Factually wrong beliefs lead to morally wrong acts only if they are acts you do not have a right to take. Since I am not your slave I have a right to refuse to sell my services to you, even if the reason I refuse is a mistaken belief.
The basic disagreement between us seems to relate to whether mistaken beliefs about the inherent moral (in)equality of people are /themselves/ immoral. You think not (they are just like mistaken factual beliefs), while I think that they are (their being /moral/ beliefs makes them different).
Now I agree that, if (eg) believing that whites are "more equal" than blacks is not itself immoral, but merely false, then the relevant moralized baseline is a situation in which this belief is retained, and relative to /that/ baseline, a white who excludes blacks from services for that reason is not harming the black person, and, as you say, any requirement that they nevertheless provide the service involves treating them (in part) as a slave.
But do /you/ agree that, if believing that whites are "more equal" than blacks IS itself immoral, then the interaction between the white and the black needs to be judged against a situation in which that belief is absent, in which case the white may well have harmed the black person relative to that /alternative/ baseline? In that case, the requirement that the white provide the service is actually a requirement that he treat all persons as moral equals, which (I claim) is the basis of laws against assault and fraud, and thus for laws against discrimination.
Except, if it is correct, my argument would show that rights against being the victim of discrimination are /negative/ rights just like rights not to be the victim of assault, theft, or fraud, since the ground for all these rights (viz, respect for one's capacity to live as one chooses) is the same. My argument does not establish that you must provide anyone with certain goods, gratis, but that you /should/ provide someone with a good if that's exactly what you /would/ do were it not for your prejudice against them.
No, it would not show that these are “negative” rights.
“Thoughtcrime” by others is in no way a negative right.
You can claim that it is immoral (and in most, but not all, cases I might agree with you; on the morality point, at least some of the time I differ from DF).
And for your benefit, note that *you* pretty much acknowledge my point with the use of the word “should”.
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.
It wasn't easily proven by the Supreme Court. Three members dissented. And the last time the issue got to the Court, a majority ruled the other way, as did the appeals court in this case.
I don't see any evidence that president of Harvard thought killing the Jews was reasonable. She had a tenured position, and it requires quite serious misdeed to get a tenured professor fired, so of course she want back to her position as a professor. I don't think she should have gotten that position — I discussed in an earlier post the contrast between her publication record and what would normally be expected, which strongly suggested that she was hired because Harvard wanted to hire a black woman, but universities don't get to reverse a hiring decision just because it was a bad one.
The real misdeed by Harvard was responding to the initial evidence of plagiarism by trying to suppress it with a threat of litigation instead of making a serious effort to find out if it was true, as I said some time back:
When I was in high school EVERYBODY knew Asians had it hard and blacks had it easy. The evidence has always been clear and never in doubt.
"Three members dissented."
I think we can all agree that Supreme Court justices are political hacks and decide cases based on their politics, especially on an issue like this. The three affirmative action dissenters were even appointed with their being racial grifters explicitly stated. Three dissents tells you nothing about the legal merits of the case, only that three of the justices were appointed by Democrats.
If you don't smack Harvard down in a way that hurts permanently, it seems likely they will simply wait out until the Supreme Court can be packed the other way, something the Democratic Party says is a top goal.
Have you read either of these last two Supreme Court cases on affirmative action?
They are entirely the same, basically nothing changed outside the political composition of the court. None of the legal positions or facts of the case changed at all. Even in the case where affirmative action was "upheld", they still basically said it was illegal but wouldn't press the issue by saying that an obvious quota was an obvious quota, despite overwhelming data.
They rather perversely gave them 25 years of "I see nothing, NOTHING!" Which naturally they made no progress on complying with 25 years later.
Look, either when you have power you say "discriminate against us and we will destroy you" or you say "you can do whatever you want and we will basically roll over and let it happen."
As to Claudine Gay, she's obviously a radical far left incompetent hack. The plagiarism stuff was just an excuse for Harvard to back down without admitting they were backing down when it became clear that Jews had the power to get their way on the issue. Unlike whites and asians, Jews respond to people discriminating against them by going nuclear and letting everyone know that their enemies will be punished. That's why they get respect.
If we want to permanently change the attitude at places like Harvard we as a society need to explain that this kind of behavior is unacceptable and will be completely wiped out without mercy. Once people at places like Harvard believe this for real they will back down.
I have read a good deal of the opinions in the recent case, have not read the earlier one. The legal question was not whether universities were discriminating in favor of Blacks but whether doing so was illegal.
Note that I argue that discriminating in favor of men is defensible as serving a legitimate purpose. The universities argued that the same was true of racial discrimination, that "diversity" was educational. The court was convinced in the past, not convinced this time.
I would rate the courts logic in the 2006 case (and before) as "tortured".
It said that "diversity" was a worthwhile goal, but not enough to justify "quotas" (which were illegal), then gave a wink and nudge pass for universities to use systems that were quite clearly quotas to any honest person as long as they didn't call them quotas, but then also said that they would only pretend these aren't quotas for 25 years (where else do you see the court do this BTW, its a travesty of legal logic), while denying that they are pretending they weren't quotas because quotas were illegal...
The dissents in the 2006 case basically call this entire word salad of contradictions out. The majority opinion in 2023 is simply the dissents from 2006. Pretty much word for word and based on the same evidence.
As to "diversity", no evidence has been presented as to its educational benefits. None was supplied in 2006 or 2023.
I think the most obvious explanation for affirmative action is that Harvard, etc see it was a way to buy off segments of society. Blacks vote 90/10 in the direction of whoever they think is on their side, and affirmative action is a way of getting blacks on your side. There is also a racial guilt angle to exploit. Expanded political and social power is in Harvard's interest.
Affirmative action seems strongest to me amongst the "paper belt" Northeast colleges whose power base is manipulating government and law. They desire a class of charismatic if relatively dull people of the right skin color to act as an ambassador class for their interests (think Obama as example), but those interests aren't my interests or America's interest more generally for that matter. I see no reason to grant them an exception to civil rights laws they ruthlessly enforce on others.
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.
I think you'd get a range of different strategies in a free market. E.g. with restaurants there are some that charge a price below clearing and where the waitlist and the exclusive clientele are part of the branding, but most restaurants set prices at a level where anyone who is willing to pay can go there.
For example, universities could auction off admissions but only allow those competent enough to stay in the programme, so you'd have some dunces the first few weeks or months but not after that. People would then rationally self-segregate by difficulty of the university and by skill level.
A university that wants to attract smart students and believes they will find an environment with other smart students more attractive will want to charge a higher price to an applicant at the bottom edge of competent enough to stay in the program than to one at the top edge.
At present, universities depend in part on donations from alumni, so they would also prefer applicants who they believe will be rich and generous to ones they expect to poor and/or stingy.
Further, professors prefer to teach smart students, in the best case can even learn from them, so having very smart students makes it easier to hire very smart professors.
The basic point being that students are in input as well as customers.
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.
But surely, of all the things that government does, it is reasonable for the federal government to attach strings to Federal money, federal loan guarantees, federal grants, that if you take that money, you can’t discriminate, yes?
As opposed to a law that just flat out states that a private business like this can’t do this type of discrimination, where I would agree with both you and DF.
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.
I agree, but would note that the logic that government funding should come with strings attached in practice leading to many more strings than just that…
Why not simply give that money to students to use for their education and decide which institution to give it to rather than directly and arbitrarily to institutions? If they do any nonsense, students going elsewhere should trigger immediate self correction.
You aren't wrong. The primary issue is that there will be some string. You say "give that money to students to use for their education", but notice that is one string up from "give every kid money when they turn 18 to do whatever they want with." So there is the restriction on use, because we don't want just a massive transfer but transfer if it goes to a use we like.
So the next question is "Ok, the recipient has to use it for education. What's education?" Strip clubs are very educational, some might say, but I don't think that is going to fly. So now government has to define what it considers educational. Trade schools? Traditional colleges? What about intern programs? Apprenticeships? Military training? A series of focused skill camps?
What counts as a trade school or traditional college, even? I used to teach college... can I start a college in my living room and have students use government money to pay? Can the church down the road?
You see the problem? Once government subsidizes a thing, it has to define what, exactly, that thing is and what it is not. Otherwise it is just handing out money. In the process of defining the thing, however, it necessarily is eliminating many other viable versions of the thing that will have to compete against a hugely cheaper version.
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.
I think I would call that an unclean hands rule. A government that is violating a rule has unclean hands to enforce it.
On the grounds of the decision, the majority dealt with that in a footnote (footnote 2 of the majority opinion): “‘We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.’ Gratz v. Bollinger, 539 U.S. 244, 276, n. 23 (2003). Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.”
Thanks. I missed that.
So as far as their verdict is concerned Harvard is free to continue to discriminate provided it stops accepting federal funds. Since no party raised that question, we don't know what would happen if they did.
I have now added that as a PS to the post.
It seems to me that one of the ways libertarianism, as commonly advocated, misses the boat is that it reflexively responds to any complaint about unfair or unfriendly practices by business owners by telling the complainer he should go into competition with them and see if he can do better -- even if that line of business is so constrained by regulations or quotas that that is effectively impossible. Where this is so, I believe that business should be required to serve all comers. This certainly describes Harvard.
What's more, a good case could be made in constitutional law that the federal government has no authority to regulate or fund education at all outside of DC and the military. Education is not one of the powers enumerated in Article I, Section 8, unless it were included in the general welfare clause, and I think Federalist #41 disposes of that idea. Yet they do it anyway. Perhaps we should just regard the Constitution as good for nothing but bumwad and have done.
No! Libertarianism is fine. You yourself stated the problem: "even if that line of business is so constrained by regulations or quotas that that is effectively impossible."
The problem is always government.
…and further, the line of business that is post- secondary education is NOT in fact constrained by regulations or quotas that it is effectively impossible to compete with them, so the premise is wrong here.
(Now if the topic were competing for federal research grant money, then indeed there well might be a case for RatMan29’s claim…)
And yet another example of the libertarian inability to deal with the world as it actually is.
I deal with reality fine. Doesn't mean I have to like it. If you like burying your head in the sand, I leave you to it. I won't.
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 I agree that schools that take federal money should be required to obey the non-discrimination laws that government itself must.
Do you?
And so I agree with DF’s point that a private university should be free to discriminate on who it admits.
They’d better not ask for a liquor license anywhere on campus, though… 😏
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 in no sense is that an identity.
Though to be fair to you, for *government* (and so, a public university) to do this *might* indeed be problematic.
But for a private university to do so it’s allowable because, as others replied, there is no law against it.
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"
“ 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.”
Agree 1000% with this last paragraph.
Pedantic point here, but the Supreme Court, as an appeals court, does not issue verdicts. Verdicts are the findings in trial courts. Rather the Supreme Court issues opinions/decisions.
>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.
It sounds as though you are claiming a property right to the inside of my head, a right to have me believe certain things, in particular not to be prejudiced — that's the situation relative to which you have been harmed. But you don't have a right for me to believe things, only not to do things that harm you. I would be better off if various people loved me and did things for me — that doesn't mean that failing to love me wrongs me.
There are lots of ways in which people believe things I think they shouldn't believe. In some cases I might be better off if they didn't believe those things — for instance if a religious believer whose store I patronize it didn't shut it for his sabbath. That doesn't give me a right to have him keep the store open.
I find it hard to think of examples of discrimination that is morally wrong because it is discrimination. If you are dying of thirst and I refuse to give you water that is wrong, but whether it is wrong does not depend on whether my reason is your race. Believing that some ethnicity is stupid or wicked isn't morally wrong, it's just wrong because it is believing something that isn't true. If you believe something that is true and act on it that is not morally wrong, so far as I can see, even if it results in your treating people of different ethnicities differently.
There are certain acts which I am normally free to take or not take, such as selling you something. Civil rights law holds that I have to take an action I don't want to if my reason for not taking it is one the state disapproves of, may not take an action I do want to if the state disapproves of my reason for taking it. That seems to me inconsistent with freedom.
>It sounds as though you are claiming a property right to the inside of my head, a right to have me ... not to be prejudiced
I certainly do not make any such claim. In my view, it is your (moral) right to believe that some people are "more equal" than others, and even to express it in public, but this is still false to believe, and—you will disagree here—it is /immoral/ to believe, and it should not be your (legal) right to act on this belief if doing so causes sufficient harm to others.
>I find it hard to think of examples of discrimination that is morally wrong because it is discrimination.
Aha! It seems I presumed wrong. My view is precisely the opposite, that some examples of discriminatory actions are morally wrong precisely because they /are/ discriminatory in the sense I defined, viz they are based on a belief that (as I put it previously) one group deserve less consideration than others, or (as I have just put it) they "more equal" than the others. This is a key difference between us. Sure, if discrimination is /not/ wrong in itself, then my argument fails.
>Believing that some ethnicity is stupid or wicked isn't morally wrong, it's just wrong because it is believing something that isn't true. If you believe something that is true and act on it that is not morally wrong, so far as I can see
But why can't a belief be both false /and/ wrong? To believe that men are "more equal" than women is not only false, but it is also sexist, and if sexist, wrong. Ditto for race. As the for the second sentence ... Pick some action A you, David, think is wrong. Then, your sentence implies, if I believe that A is /not/ wrong and act on it then my doing A is /not/ wrong. Which is it?
You seem to want to think that sincere—and, let's add, intellectually conscientious—belief in moral claims exempts you from moral criticism if those beliefs happen to be false. But this is just to suppose that, when it comes to judging you morally, your intellectual conscientiousness trumps the horribly mistaken moral conclusions you have drawn. As much as I admire intellectual conscientiousness, I don't see why that should be so.
"if doing so causes sufficient harm to others. "
Where not selling your services to someone, or not buying his services, counts as causing harm. That is treating you as a slave, someone who owes service to other people and so wrong them if he does not provide it.
"You seem to want to think that sincere—and, let's add, intellectually conscientious—belief in moral claims exempts you from moral criticism if those beliefs happen to be false."
That is not what I am saying. On the contrary, in my view for someone to enforce nondiscrimination law by suing someone for refusing to sell to him is wrong even if he, like you, believes it is right.
The point isn't that a belief can't be both false and wrong, it is that holding a belief is not morally wrong even if the belief is mistaken. Thinking my neighbor is a murderer is not morally wrong even if he isn't. Shooting him on the theory that he is going to murder me is. Factually wrong beliefs lead to morally wrong acts only if they are acts you do not have a right to take. Since I am not your slave I have a right to refuse to sell my services to you, even if the reason I refuse is a mistaken belief.
The basic disagreement between us seems to relate to whether mistaken beliefs about the inherent moral (in)equality of people are /themselves/ immoral. You think not (they are just like mistaken factual beliefs), while I think that they are (their being /moral/ beliefs makes them different).
Now I agree that, if (eg) believing that whites are "more equal" than blacks is not itself immoral, but merely false, then the relevant moralized baseline is a situation in which this belief is retained, and relative to /that/ baseline, a white who excludes blacks from services for that reason is not harming the black person, and, as you say, any requirement that they nevertheless provide the service involves treating them (in part) as a slave.
But do /you/ agree that, if believing that whites are "more equal" than blacks IS itself immoral, then the interaction between the white and the black needs to be judged against a situation in which that belief is absent, in which case the white may well have harmed the black person relative to that /alternative/ baseline? In that case, the requirement that the white provide the service is actually a requirement that he treat all persons as moral equals, which (I claim) is the basis of laws against assault and fraud, and thus for laws against discrimination.
Fortunately, as Obama lamented, our Constitution is one of negative rights, not positive ones as you are trying to argue.
Except, if it is correct, my argument would show that rights against being the victim of discrimination are /negative/ rights just like rights not to be the victim of assault, theft, or fraud, since the ground for all these rights (viz, respect for one's capacity to live as one chooses) is the same. My argument does not establish that you must provide anyone with certain goods, gratis, but that you /should/ provide someone with a good if that's exactly what you /would/ do were it not for your prejudice against them.
No, it would not show that these are “negative” rights.
“Thoughtcrime” by others is in no way a negative right.
You can claim that it is immoral (and in most, but not all, cases I might agree with you; on the morality point, at least some of the time I differ from DF).
And for your benefit, note that *you* pretty much acknowledge my point with the use of the word “should”.
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.
It wasn't easily proven by the Supreme Court. Three members dissented. And the last time the issue got to the Court, a majority ruled the other way, as did the appeals court in this case.
I don't see any evidence that president of Harvard thought killing the Jews was reasonable. She had a tenured position, and it requires quite serious misdeed to get a tenured professor fired, so of course she want back to her position as a professor. I don't think she should have gotten that position — I discussed in an earlier post the contrast between her publication record and what would normally be expected, which strongly suggested that she was hired because Harvard wanted to hire a black woman, but universities don't get to reverse a hiring decision just because it was a bad one.
The real misdeed by Harvard was responding to the initial evidence of plagiarism by trying to suppress it with a threat of litigation instead of making a serious effort to find out if it was true, as I said some time back:
https://daviddfriedman.substack.com/p/harvard-plagiarism-case
"It wasn't easily proven by the Supreme Court."
The SAT gaps between blacks (and hispanics) and the rest have been around for decades. They were the same back in 2006 the last time this was done.
https://qph.cf2.quoracdn.net/main-qimg-ab958890cb993005b5fb957365430835-lq
When I was in high school EVERYBODY knew Asians had it hard and blacks had it easy. The evidence has always been clear and never in doubt.
"Three members dissented."
I think we can all agree that Supreme Court justices are political hacks and decide cases based on their politics, especially on an issue like this. The three affirmative action dissenters were even appointed with their being racial grifters explicitly stated. Three dissents tells you nothing about the legal merits of the case, only that three of the justices were appointed by Democrats.
If you don't smack Harvard down in a way that hurts permanently, it seems likely they will simply wait out until the Supreme Court can be packed the other way, something the Democratic Party says is a top goal.
Have you read either of these last two Supreme Court cases on affirmative action?
They are entirely the same, basically nothing changed outside the political composition of the court. None of the legal positions or facts of the case changed at all. Even in the case where affirmative action was "upheld", they still basically said it was illegal but wouldn't press the issue by saying that an obvious quota was an obvious quota, despite overwhelming data.
They rather perversely gave them 25 years of "I see nothing, NOTHING!" Which naturally they made no progress on complying with 25 years later.
Look, either when you have power you say "discriminate against us and we will destroy you" or you say "you can do whatever you want and we will basically roll over and let it happen."
As to Claudine Gay, she's obviously a radical far left incompetent hack. The plagiarism stuff was just an excuse for Harvard to back down without admitting they were backing down when it became clear that Jews had the power to get their way on the issue. Unlike whites and asians, Jews respond to people discriminating against them by going nuclear and letting everyone know that their enemies will be punished. That's why they get respect.
If we want to permanently change the attitude at places like Harvard we as a society need to explain that this kind of behavior is unacceptable and will be completely wiped out without mercy. Once people at places like Harvard believe this for real they will back down.
I have read a good deal of the opinions in the recent case, have not read the earlier one. The legal question was not whether universities were discriminating in favor of Blacks but whether doing so was illegal.
Note that I argue that discriminating in favor of men is defensible as serving a legitimate purpose. The universities argued that the same was true of racial discrimination, that "diversity" was educational. The court was convinced in the past, not convinced this time.
I would rate the courts logic in the 2006 case (and before) as "tortured".
It said that "diversity" was a worthwhile goal, but not enough to justify "quotas" (which were illegal), then gave a wink and nudge pass for universities to use systems that were quite clearly quotas to any honest person as long as they didn't call them quotas, but then also said that they would only pretend these aren't quotas for 25 years (where else do you see the court do this BTW, its a travesty of legal logic), while denying that they are pretending they weren't quotas because quotas were illegal...
The dissents in the 2006 case basically call this entire word salad of contradictions out. The majority opinion in 2023 is simply the dissents from 2006. Pretty much word for word and based on the same evidence.
As to "diversity", no evidence has been presented as to its educational benefits. None was supplied in 2006 or 2023.
I think the most obvious explanation for affirmative action is that Harvard, etc see it was a way to buy off segments of society. Blacks vote 90/10 in the direction of whoever they think is on their side, and affirmative action is a way of getting blacks on your side. There is also a racial guilt angle to exploit. Expanded political and social power is in Harvard's interest.
Affirmative action seems strongest to me amongst the "paper belt" Northeast colleges whose power base is manipulating government and law. They desire a class of charismatic if relatively dull people of the right skin color to act as an ambassador class for their interests (think Obama as example), but those interests aren't my interests or America's interest more generally for that matter. I see no reason to grant them an exception to civil rights laws they ruthlessly enforce on others.
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.
I think you'd get a range of different strategies in a free market. E.g. with restaurants there are some that charge a price below clearing and where the waitlist and the exclusive clientele are part of the branding, but most restaurants set prices at a level where anyone who is willing to pay can go there.
For example, universities could auction off admissions but only allow those competent enough to stay in the programme, so you'd have some dunces the first few weeks or months but not after that. People would then rationally self-segregate by difficulty of the university and by skill level.
A university that wants to attract smart students and believes they will find an environment with other smart students more attractive will want to charge a higher price to an applicant at the bottom edge of competent enough to stay in the program than to one at the top edge.
At present, universities depend in part on donations from alumni, so they would also prefer applicants who they believe will be rich and generous to ones they expect to poor and/or stingy.
Further, professors prefer to teach smart students, in the best case can even learn from them, so having very smart students makes it easier to hire very smart professors.
The basic point being that students are in input as well as customers.
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.
But surely, of all the things that government does, it is reasonable for the federal government to attach strings to Federal money, federal loan guarantees, federal grants, that if you take that money, you can’t discriminate, yes?
As opposed to a law that just flat out states that a private business like this can’t do this type of discrimination, where I would agree with both you and DF.