Patterico's Pontifications

4/22/2014

Breaking Reports: Supreme Court Upholds Michigan Ban on Affirmative Action

Filed under: General — Patterico @ 7:24 am

It’s little more than one-line breaking reports right now:

Supreme Court upholds Michigan’s ban on affirmative action in college admissions.

I’m about to leave for work, but here’s your thread to discuss the case as the details are fleshed out.

UPDATE: Opinion here (.pdf).

UPDATE x2: If an opinion makes hash of the law; if it refuses to overrule clearly bad precedents; if it seeks to harmonize irreconcilable positions with high-minded and impossible-to-understand verbiage . . . then it was written by Justice Kennedy.

I concur, as does Justice Thomas in this case, with Justice Scalia.

106 Responses to “Breaking Reports: Supreme Court Upholds Michigan Ban on Affirmative Action”

  1. Ding.

    Patterico (9c670f)

  2. Good news for Prop. 209 fans.

    Patterico (9c670f)

  3. The story:

    WASHINGTON — The Supreme Court on Tuesday upheld Michigan’s ban on using race as a factor in college admissions.

    The justices said in a 6-2 ruling that Michigan voters had the right to change their state constitution to prohibit public colleges and universities from taking account of race in admissions decisions. The justices said that a lower federal court was wrong to set aside the change as discriminatory.

    Justice Anthony Kennedy said voters chose to eliminate racial preferences because they deemed them unwise.

    Kennedy said nothing in the Constitution or the court’s prior cases gives judges the authority to undermine the election results.

    “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Kennedy said.

    In dissent, Justice Sonia Sotomayor said the decision tramples on the rights of minorities, even though the amendment was adopted democratically. “But without checks, democratically approved legislation can oppress minority groups,” said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor in dissent.

    At 58 pages, Sotomayor’s dissent was longer than the combined length of the four opinions in support of the outcome.

    Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Antonin Scalia and Clarence Thomas agreed with Kennedy.

    Justice Elena Kagan did not take part in the case, presumably because she worked on it at an earlier stage while serving in the Justice Department.

    The Dana who missed the first comment (3e4784)

  4. In dissent, Justice Sonia Sotomayor said the decision tramples on the rights of minorities, even though the amendment was adopted democratically. “But without checks, democratically approved legislation can oppress minority groups,” said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor in dissent.

    The learned Justice said, in effect, that legislation which specifically bans discrimination on the basis of race is, in itself, racially discriminatory. In other words, if you don’t grant minorities preferences, they are being discriminated against.

    In Grutter v Bollinger, Justice Sandra O’Connor said that the Court expected that the racial preferences allowed in 2003 would be unnecessary in 25 years, due, I suppose, to the beneficial effect of those preferences. Well, that was 11 years ago, so we’re not quite half way through the Grutter formulation of a quarter of a century.

    It seems that Justice Sotomayor believes that racial preferences, which were allowed in Grutter, are actually mandatory.

    The Dana who thinks that the "wise Latina" is dumb as a box of rocks (3e4784)

  5. So how is it that the dissent decides that it is unconstitutional for a state to outlaw discrimination based on race? That’s a puzzler. I can’t wait to read their logic.

    It is frightening that there is even a single justice sitting on that court who believes this is unconstitutional.

    Patterico (67ac43)

  6. It’s because shut up, Patterico. That’s how it works now.

    And it frightens me.

    Simon Jester (c8876d)

  7. that’s a very doubleunplusgood question.

    narciso (3fec35)

  8. I have not had time to read yet, but: four different opinions supporting the outocme, each with a different rationale, none of which gathered a majority.

    So which rationale has precedential value?

    *sigh*

    aphrael (db1491)

  9. Aphrael – it is sad that they could not collectively arrive at a decision along the lines of “picking people on the basis of race is wrong”.

    JD (f2d028)

  10. Wait, wait, what?

    From today’s opinion by Kennedy:

    “In essence, according to the broad reading of _Seattle_, any state action with a ‘racial focus’ that makes it ‘more difficult for certain minorities than for other groups’ to ‘achieve legislation that is in their interest’ is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.”

    Doesn’t that undermine _Roemer_?

    aphrael (db1491)

  11. Patterico – Justice Kennedy explicitly calls out the CA Supreme Court’s decision on Prop 209, and the 9th Circuits decision on Prop 209, as a reason why overturning Michigan’s amendment would unsettle the law and “in essence announce a finding that the past fifteen years of state public debate on this issue have been improper.”

    aphrael (db1491)

  12. The opening of Scalia’s opinion is fantatic.

    That said, I find his argument on _Hunter_ unpersuasive. I think it’s clear that a state law creating a higher political process burden for an anti-discrimination law is an equal protection violation – it carves out anti-discrimination laws *specifically* and makes them more difficult to enact than ordinary legislation, which (in the case of the law in _Hunter_) had both the intent *and* the effect of making it more difficult to ensure equal protection.

    I think this case and _Hunter_ can be distinguished based on the distinction between _anti-discrimination_ and _affirmative action_ :)

    aphrael (db1491)

  13. Looks like democracy is upheld.

    gary gulrud (384f70)

  14. I very much like Breyer’s explanation for why _Hunter_ and _Seattle_ are distinguishable and irrelevant.

    aphrael (db1491)

  15. It’s not rocket science. Treating people differently on the basis of “race” (whatever the heck that means) is…racist.

    Ask the Asian students who can’t get into UC Berkeley.

    And the ironic part, in our history deprived culture, is that the “Jewish Quota” in higher education was not touted as anti-Semitic. It was designed to “allow opportunities” for others.

    To me, racism is racism.

    But victimhood has created an entire industry parasitic upon our culture…and notice that few other nations follow our lead on this.

    Simon Jester (c8876d)

  16. Note how the media is presenting a 6-2 decision as one of a “sharply divided court..”.

    the bhead (fbcafb)

  17. The TL;DR version of the dissent, at least from their opening summary:

    * it’s existing law that, when a minority group achieves a political victory in a subdivision of a state which the majority of the state dislikes, the state may *not* respond to this by restructuring the political process in the state so as to deny the minority group it’s victory. (this is *specific* to changes in political process which are clearly targeted at that minority group’s political victories). Doing so unconstitutionally singles out the minority group and denies them equal treatment of the law by making it more difficult for them – and *only* for them – to achieve their political ends.

    so, for example, when a city passes an anti-discrimination ordinance to protect against discriminatory hiring on the basis of race, the state may not respond by changing the law so that such things can only be done by the state.

    * this constitutional amendment responds to the university’s decision to enact affirmative action policies by transferring the power to do so to another level of government.

    * therefore this (state) constitutional amendment is (federally) unconstitutional.

    Kennedy’s opinion seeks to reinterpret the existing precedent so that it’s making a less strong claim and, IMO, makes a hash of it. Scalia’s opinion seeks to overturn the existing precedent. Breyer’s opinion makes a distinction which is clear, easy to understand, and IMO compelling (that because of the way admissions decisions were being made this can’t reasonably be viewed as moving political power from one set of voters to another, as the universities weren’t responding to the democratic process in the first place). Roberts’ opinion focuses on something not related to this issue.

    aphrael (db1491)

  18. bhead, I’d describe this as a sharply divided court. There’s a strong majority to uphold, but three different rationales for why it should be upheld, none of which commands a majority. So it’s utterly unclear what the state of the law is, because it’s utterly unclear what rationale can be applied to other cases that come up in the future.

    aphrael (db1491)

  19. aphrael wrote:

    I think it’s clear that a state law creating a higher political process burden for an anti-discrimination law is an equal protection violation – it carves out anti-discrimination laws *specifically* and makes them more difficult to enact than ordinary legislation, which (in the case of the law in _Hunter_) had both the intent *and* the effect of making it more difficult to ensure equal protection.

    I am uncertain why BAMN somehow faces a more difficult task to repeal §26 than was faced by the proponents of Proposition 2 to get it passed in the first place. Proposition 2 was a constitutional amendment requiring voter signatures, followed by a statewide campaign to get it passed; repeal would follow the same path. To argue that BAMN faces a greater obstacle is to argue that the voters themselves are inherently discriminatory, and that the results of the democratic process face a greater burden in one direction than the other.

    Of course, there is the second point: the underlying assumption that a law or constitutional provision which prohibits racial discrimination is, in itself, inherently discriminatory. Had the Sixth Circuit decision been upheld, Justice O’Connor’s statement in Grutter that the Court expected that the Affirmative Action programs allowed then would be unnecessary in 25 years would be wiped out, because Affirmative Action would have to continue.

    The Dana who isn't a lawyer (3e4784)

  20. Dana, yeah, I’m not talking about *this case*, I’m talking about the underlying precedent, which Scalia thinks was wrong.

    I think it’s pretty clear that in the early 1960s, taking the power to enact an anti-discrimination law away from a city council and vesting it in the state legislature and/or the state’s voters was clearly intended to, and had the effect of, making it harder to pass anti-discrimination laws.

    > that the results of the democratic process face a greater burden in one direction than the other.

    This is tough, because I think it’s clearly true in many cases that the results of the democratic process face greater burdens in one direction than the other, but I think the degree to which courts are empowered to take account of this is very, very small.

    aphrael (db1491)

  21. aphrael–

    Agreed. Scalia is on a roll in this, and taking no prisoners:

    It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say(except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it,they did not simultaneously offend it.

    Even taking this Court’s sorry line of race-based admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?

    Kevin M (b11279)

  22. Right have you been paying attention in the last 10 years, if not 20 how this works,

    narciso (3fec35)

  23. It’s because shut up, Patterico. That’s how it works now.

    Not exactly. It’s because we need an open discussion on race and this vote prevents it AND shut up.

    Kevin M (b11279)

  24. 20. Freedom to enter the unemployment line?

    We have noted that education costs are rising at double the rate of the Health industry, as has been the case since the Feds got into the business back in the 70′s.

    The local state university, once the largest save for the U of M, is down 12% despite being a visa printer.

    One third of student loans, totally $300 Billion, are in arrears, for degrees providing no RoI.

    On the azz of 404care’s 2015 execution, we are looking at SMOD filling the field of view.

    gary gulrud (384f70)

  25. aphrael wrote:

    I think it’s pretty clear that in the early 1960s, taking the power to enact an anti-discrimination law away from a city council and vesting it in the state legislature and/or the state’s voters was clearly intended to, and had the effect of, making it harder to pass anti-discrimination laws.

    Are you arguing, then, that the rationale for Hunter has lapsed?

    The Dana who still isn't a lawyer (3e4784)

  26. I don’t know if i’m arguing that, because I don’t think I have the data to argue that one way or another.

    I *am* arguing that _Hunter_ is clearly distinguishable using either Breyer’s rationale or using the rationale that anti-discrimination ordinances are a specifically constrained subset of ‘laws designed to place a burden on a specific minority groups’.

    aphrael (db1491)

  27. Doesn’t that undermine _Roemer_?

    One can only hope. While I understand Rohmer’s intent (banning state constitutional provisions that intend to politically hobble a minority or faction), it has been understood as a ban on Constitutional provisions that merely affect a minority or faction.

    Kevin M (b11279)

  28. Thanks, aphrael, for the excellent summaries that you have been providing.

    Somewhere in Cambridge Lawrence Tribe is lamenting that his protege Elena Kagan had to recuse herself. Surely her incredibly awesome power of persuasion would have led Kennedy and Breyer back to the liberals’ point of view.

    JVW (9946b6)

  29. Not exactly. It’s because we need an open discussion on race and this vote prevents it AND shut up.

    We need an “open” discussion on race which leads us to a predestined and pre-approved conclusion.

    JVW (9946b6)

  30. ‘democratic centralism’ is what they called it

    narciso (3fec35)

  31. aphrael–

    #12: Would you say the same thing about the other direction: removing state preemption in regulating guns, for example, allowing local jurisdictions to be more restrictive (but not more lax) in their gun policy? Since it does impact a core Right (self-defense), is not this also a hobbling of those seeking guns for their defense?

    Or am I misreading your argument about preemption?

    Kevin M (b11279)

  32. We need an “open” discussion on race which leads us to a predestined and pre-approved conclusion.

    That’s the SHUT UP part.

    Kevin M (b11279)

  33. It seems to me that Justice Scalia came close to the target, but pulled up short:

    Even taking this Court’s sorry line of race-based admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?

    Simply by allowing the government to notice race, we wind up with the cockamamie results we have in attempting to address race. It is, in effect, illegal to discriminate against certain people on account of race, but not only legal, but in some cases required to discriminate against other people on account of race. That leaves politicians and the courts with the burden of deciding how much discrimination to allow, and for or against whom, all under a Constitution which says that it shouldn’t be done in the first place.

    I would argue that quantification by race is essentially indistinguishable from qualification by race, and that doing something as innocuously simple as counting by race necessarily leads to discrimination by race. Logically, it should not be so, but in every practical result it has been so.

    The Dana who'd make a lousy attorney (3e4784)

  34. Under the 14th or 5th Amendments of the U.S. Constitution, affirmative action discrimination should be outlawed. Pending that desirable outcome, public condemnations, such as California’s and Michigan’s,should be upheld.

    SA (db14c7)

  35. Justice Sotomayor wrote:

    Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of skin color. Without race-sensitive admissions policies, this might well be impossible.

    This strikes me as wrongheaded on two points. First, it assumes that if a public college chooses “to prioritize the goal of diversity,” that its supervisory governments — cities or states — lose their supervisory authority over the college in that area. Second, it holds, in effect, that a government entity not only may but must choose “to prioritize the goal of diversity,” without the ability to choose a policy of non-discrimination.

    One wonders how Justice Sotomayor would have ruled had it been the University of Michigan which had chosen to put into place race-blind admissions policies, and the state of Michigan which wanted to override that and require Affirmative Action.

    OK, that’s a lie: no one wonders about that at all.

    The Dana who always tells the truth (3e4784)

  36. Wow. The other decision handed down today involved (a) a five member majority opinion by Justice Thomas and (b) a four member minority dissent by Justice Scalia.

    aphrael (db1491)

  37. Greetings:

    For a couple of years now, my thinking has settled on the idea that the establishment of “affirmative action” was the beginning of our Progressive end. When all those well-closeted Progressives saw that white males were so attached to the idea of “the Rule of Law” that they would allow their government to designate them for official oppression, they found that they had a whole new toolbox with which to apply their nefarious ways to this country.

    For me, the lesson of the Cliven Bundy brouhaha is that the time for “the Rule of Law” has past. It’s time for those on the political right to learn the lessons of the OCCUPY movement. A couple of hundred people showing up in the IRS’s or the BLM’s headquarters buildings for a camp-out or two might be the only kind of teaching tool left to us. As Leo Durocher said, “Nice guys finish last.”

    While some may find a theoretical ray of light in this ruling, I would, referring back to California’s 209 resolution, make plain the idea that our Progressive brothers and sisters will still be at work manipulating both the language of the decision and all those myriad bureaucratic regulations that have brought them so much success. The only arguments one wins with Progressives are the ones that aren’t over yet. Or, more colloquially, “You can’t argue with a sick mind.”

    11B40 (6abb5c)

  38. > Simply by allowing the government to notice race, we wind up with the cockamamie results we have in attempting to address race.

    On the other hand, not allowing the collection of statistical data makes it difficult to notice, and therefore difficult to address, racial discrimination.

    I think it would be naive to say that if we don’t measure it it will stop happening.

    aphrael (db1491)

  39. It’s naive to think racial discrimination can be measured.

    ropelight (57ee84)

  40. aphrael wrote:

    Simply by allowing the government to notice race, we wind up with the cockamamie results we have in attempting to address race.

    On the other hand, not allowing the collection of statistical data makes it difficult to notice, and therefore difficult to address, racial discrimination.

    I think it would be naive to say that if we don’t measure it it will stop happening.

    The obvious question becomes: if such discrimination continues, will it be discrimination by the government, which would be subject to remedial action, or discrimination by private individuals, which ought to be none of the government’s business?

    Affirmative Action was, in effect, an attempt to use public institutions to combat private discrimination: if we increase the number of disadvantaged minority students being graduated from prestige institutions, we would (supposedly) create a class of educated minority persons who could compete on an even playing field with other applicants. The trouble is that, to do that, we had to have government institutions discriminate against people who weren’t disadvantaged minorities to try to level the playing field in private employment applications. It was as though we were trying to drown out a fire by dousing it with gasoline. That really is as dumb as it sounds.

    When I matriculated at the University of Kentucky, UK had an open admissions policy: any graduate of an accredited high school in Kentucky was guaranteed acceptance as long as he took the ACT. UK compensated for that with a rather high flunk out rate. That was kind of brutal, but it wasn’t discriminatory.

    Of course, there were complaints at the time that UK had too low a minority student population (only about 2%), but with an open admissions policy, the blame could only be assigned to who applied.

    The Dana who sees the difference (3e4784)

  41. Kevin – that’s a good question, and i’m not sure.

    There are three things I see changing in your hypothetical:
    (a) moving from a larger to a smaller political body instead of from a smaller to a larger;
    (b) making the change *after* the body-losing-power has already made the decision, so as to undo the decision;
    (c) anti-discrimination vs. general fundamental rights.

    Understanding that I haven’t fully fleshed out my thinking on this and am not writing a law review article :), I don’t think (a) is actually relevent. I think (b) goes a long way to demonstrating *intent*. And I fundamentally think that there *is* something different about anti-discrimination laws per se.

    But I don’t know if the differences in (b) and (c) are enough to make me feel differently about your hypo or not.

    aphrael (db1491)

  42. The soft bigotry and racism of low expectations…

    Colonel Haiku (2601c0)

  43. their logic.
    Comment by Patterico (67ac43) — 4/22/2014 @ 7:50 am

    I think it is called, “This is what I, as a wise Latina, think it should be.”

    Lest one get the wrong idea, I personally know someone named Sonia, and I told her I thought she would do a better job as a Supreme Court justice, and that she was a wiser Latina.
    She agreed on all counts.

    Here’s an idea, give school vouchers so poor kids of any race can go to a good private school starting in Kindergarten so that when they graduate from high school the only thing they need to worry about is not being discriminated against.

    MD in Philly (f9371b)

  44. Performance, not potential, should be what motivates. This is supposed to be a colorblind society and it ultimately serves no one to expect, much less reward, sub-par performance.

    Colonel Haiku (2601c0)

  45. MD in Philly – in the short term the existence of the vouchers would cause an inflation in the cost of private education, as this huge number of students would be trying to get into existing facilities. Opening new schools in urban or suburban areas is difficult, at least in part because of rules which limit the activities of businesses or residents *in the vicinity of schools*, creating large opposition to the introduction of new schools.

    aphrael (db1491)

  46. The colonel wrote:

    Performance, not potential, should be what motivates.

    Trouble is, in decisions which currently involve Affirmative Action, potential is what is being sought. Performance on the ACT is standardized, but when you are looking at high school grades, there are many, many cases in which you are looking at inflated grades. An employer looking at an applicant fresh out of college is stuck with the same problem, significant grade inflation, especially in the humanities. It’s only when you have a record of an applicant’s previous employment that you have a chance to accurately gauge performance

    The realistic Dana (3e4784)

  47. Sotomayor had quite the long dissent. Even had charts from UCLA!

    DejectedHead (a094a6)

  48. well then change those rules, then, note how the unconstitutional approach is the only one recommended,

    narciso (3fec35)

  49. Narciso, the problem is that a lot of those rules are there for decent reasons. Environmental health concerns are stronger in places where children congregate (for example) due to the difference in acceptable exposure levels for children than for adults. I’m less sympathetic to the rules that restrict where alcohol-selling establishments, or porn vendors, or the like can be … but the voters tend to like them, and it’s a rational thing for existing businesses in this line of work to oppose land use permits for schools whose very presence would render them subject to rules that would then put them out of business.

    aphrael (db1491)

  50. Well, aphrael, rules need to be changed to allow reputable existing private schools to expand or open new locations, including taking over the now emptied public schools.
    A major problem with charters is they sometimes are more a setting for educational entrepreneurs than educators, private schools are used to being accountable to their parents.

    The only “fair” alternative to vouchers is to demand that every politician send their children to the local public school system. Many places such as Philly have laws that say you must live in the city if you have certain jobs.

    This is one thing that could be get me pretty riled. I think it is OBSCENE (yes, I intended to yell) that president Obama backed the ending of a program that allowed non-rich kids in DC to go to the same schools as his daughters (at less cost than a public school as well, IIRC). Someone should have asked him what did he have against poor kids getting a good education.

    MD in Philly (f9371b)

  51. Aphrael, one of my two boys along with many other children of friends were mugged at least once in the vicinity of renown Central High in Philly, going to or coming from school.

    I have very little sympathy for anybody having any reason to interfere with the improvement of schools.

    MD in Philly (f9371b)

  52. Imagine the position of the business owner who has strong reason to believe that if a school moves in down the block, his business will be shut down within two years. I have a hard time *not* being sympathetic to his concerns.

    aphrael (db1491)

  53. I’m going to play Devil’s Advocate for a moment and defend Affirmative Action as it was originally envisioned.

    Back in the day, after 200 years of chattel slavery and 100 years of apartheid, to come along and say “It’s a brand new day and we are ending discrimination entirely! No more racial lines!” would have missed the point of multigenerational impoverishment at the hands of both the state and the majority of citizens.

    AA was not entirely a progressive idea, was never intended to be a quantitative exercise and was clearly not intended to be a permanent institution. Its start involved people right Right as well as the Left.

    In 1971, then Governor Ronald Reagan signed Executive Order (E.O.) No. R-34-71, which stated “justice demands that every citizen consciously adopt and accentuate a personal commitment to affirmative action which will make equal opportunity a reality.”

    http://special.pacificresearch.org/pub/sab/social/civil_briefing/civil_brief.html

    There is nothing wrong with saying “please, apply, you are welcome here.” In many situations that no longer needs to be said, in others it still does (e.g. gays and the NFL).

    Sadly, though, this isn’t what the liberals have turned AA into. Now it’s just set-asides and numerical preferences.

    Kevin M (b11279)

  54. Mr M wrote:

    There is nothing wrong with saying “please, apply, you are welcome here.” In many situations that no longer needs to be said, in others it still does (e.g. gays and the NFL).

    Sadly, though, this isn’t what the liberals have turned AA into. Now it’s just set-asides and numerical preferences.

    The set-asides and numerical preferences were the natural result of the question: how do you measure progress? Progress was going to be determined by an increasing number of minority position-holders, and once you determine a critical number score which indicates that progress has been achieved, taking action to achieve that number in a direct and straightforward manner is going to be the natural response, especially when you have bean counters and MBA graduates involved.

    Then you get the other part, the outside interest groups who demand measured progress, measured meaning hard numbers, and you have twice the pressure for a numerical solution.

    UK had a “Please, apply, you are welcome here” approach, with an open enrollment policy, but it did not yield the numbers of black students wanted. Something Had To Be Done.

    The historian Dana (3e4784)

  55. CA Legislative leaders are in intensive care.

    askeptic (8ecc78)

  56. An example of “affirmative action” that seems more in line with the original idea.

    My alma mater, Harvey Mudd, decided about 20 years ago that there needed to be more women in what is now called the STEM fields. At the time I went there, the college was about 97% male (this would have been more of a drag had it not been for the girl’s school women’s college (Scripps) literally across the street).

    So, instead of watering down their degree by lowering admission standards, the actively recruited qualified women to consider their school, and science, engineering or computer science as fields of study. It helped that Mudd had a strong liberal arts minor requirement (Mudd is not only the #2 engineering college, but also in the top 20 of liberal arts schools, as are the allied Pomona and CMC).

    The current entering class at Mudd is about 47% women. It’s not so much that men have been turned away, as men, but that they have an unusual number of qualified women to compete against for admission.

    The value of a Mudd degree does not seem to have been hurt much.

    Kevin M (b11279)

  57. Note that Mudd also tried to do this with blacks, but found that the pool of qualified blacks in each year’s cohort is in the low hundreds nationally, and not all of them want to pursue STEM careers.

    Kevin M (b11279)

  58. the whimsical constitutional stylings of the whore roberts court aren’t nearly as interesting or important as they were back when the constitution was given a modicum of respect even by the sauciest of these berobed whores

    happyfeet (8ce051)

  59. which is the sauciest, feets? the one with the visible prenumbra?

    carlitos (e7c734)

  60. 21-
    “…taking the power to enact an anti-discrimination law away from a city council and vesting it in the state legislature and/or the state’s voters was clearly intended to, and had the effect of, making it harder to pass anti-discrimination laws…

    Or, it was the intent to ensure that such laws would be uniform throughout a state, to at least provide “equal protection” in their application.

    askeptic (8ecc78)

  61. “…Opening new schools in urban or suburban areas is difficult, at least in part because of rules which limit the activities of businesses or residents *in the vicinity of schools*, creating large opposition to the introduction of new schools.”

    The country, and particularly those cities with declining populations, are over-run with under or non utilized schools. The enabling legislation for a voucher system could easily include language allowing or compelling private/charter schools to utilize existing surplus facilities (the Great NYC Charter School Battle) at a “fair market price”

    A school is a school is a school, no matter how it is economically structured.

    askeptic (8ecc78)

  62. Well they are wildly inconsistent, for Obamacare against SB 1070, against the free speech gauletiers,

    narciso (3fec35)

  63. If the law was consistent, there would be no need for lawyers.

    askeptic (8ecc78)

  64. point taken, but there is no guideline they abide by;

    Clearest of all is Justice Antonin Scalia’s concurrence in the judgment, joined by Justice Clarence Thomas. “It has come to this,” Scalia begins portentously. “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”

    narciso (3fec35)

  65. Disparate Outcomes, Bitchez!!!!!!

    daleyrocks (bf33e9)

  66. Imagine that. The Court actually permitted Michigan voters to decide the law they wish to live under. Boy will THAT change should a 5th Marxist be placed on the Court. (No doubt with the help of John McCain and other Sunshine Conservatives.)

    Doug Book (8e8bdf)

  67. Sunshine Conservatives….
    So, that’s what’s wrong with McLame, too much sunshine – probably from not wearing a proper cover.

    askeptic (8ecc78)

  68. we won’t for sure know who’s the sauciest until we get tv cameras in there

    then what Katie needs to do is to go to Home Depot and procure materials with which to bar the door

    happyfeet (8ce051)

  69. If a fifth Marxist is confirmed by the Senate between now and next January 6, it will be because the Democrats will continue to have the numbers in the Senate between now and then.
    That is because the GOP lost a stunning number of opportunities to flip Democrat-held Senate seats during the past three election cycles. And Richard Mourdoch foolishly gave away Lugar’s seat in Indiana.

    Let’s all say a prayer for the health of the current Justices.

    Elephant Stone (3d8c2e)

  70. mister happy, i hope you have some new casserole recipes to report. and how was your recent trip to eddie brandt’s ?

    Elephant Stone (3d8c2e)

  71. Richard Mourdoch probably would’ve won if he hadn’t said all that freaky stuff about rape

    but I’m glad he didn’t just keep all that to himself

    it’s better for people who think like that to sing their truth I think for so the voters can decide

    happyfeet (8ce051)

  72. I apologize I haven’t actually made it there yet

    they keep very odd hours

    no new recipes

    I’m a do a roast tomorrow

    just regular old roast and bakers

    happyfeet (8ce051)

  73. mister happy, yes, eddie brandt’s keeps odd hours. i believe it’s because the family that owns it, all commute from lancaster or palmdale or some faraway town in a county, far, far away.

    Elephant Stone (3d8c2e)

  74. Who voted to confirm this twit on our side, and who stood against;

    http://www.thegatewaypundit.com/2014/04/whining-nancy-boy-john-kerry-it-was-easier-during-the-cold-war/

    narciso (3fec35)

  75. Sotomayor says that affirmative action “opened doors” for her, and I think that’s plainly evident. It’s hard to imagine a person with her shoddy scholarship, unstable temperament, and grade-school-level reasoning making her way onto the Supreme Court without the pernicious thumb of racial quotas pressing down on the scale.

    Meyer Schultz (9d942e)

  76. The learned Justice said, in effect, that legislation which specifically bans discrimination on the basis of race is, in itself, racially discriminatory. In other words, if you don’t grant minorities preferences, they are being discriminated against.

    Justice Sotomayor wrote: Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment

    Doublespeak be thy name, Ms Sotomayor. George Orwell had people like you in mind when he was penning his novel “1984.”

    I bet Sotomayor wouldn’t argue her point quite so strongly — if at all — if the schools in question were along the lines of Morehouse College or Howard University. Beyond that, I wonder what her knee-jerk reactions would be towards the lack of much diversity in, for example, the NBA?

    However, her instincts might have had a bit more relevance over 70 years ago when probably one of her heroes, Franklin D. Roosevelt, no less, was nonchalantly and happily setting up quotas to restrict the number of Jews in places of public accommodation. But in today’s era, Asian-Americans have supplanted Jewish-Americans on at least the college campus, and so a strange mix of both closeted-bigoted, couch-potato liberals and new-age, do-gooder liberals may approach the issue of diversity with a sense of ideological schizophrenia.

    Mark (59e5be)

  77. Given that Justice O’Connor, writing for the majority in Grutter, stated that the Court expected that the racial preferences approved that dark day in 2003 would not be permanent, and would no longer be necessary come 2028, I wonder what the wise Latina would say, come 2028 — by which time I would hope she will have retired — when Affirmative Action (sort of) expires, and she isn’t seeing the results she thinks ought to exist?

    OK, OK, that’s another lie: I don’t wonder about that at all. When she said, explicitly, that her race and her genitals made her more qualified to sit on the Supreme Court than “a white male who hasn’t lived that life,” she told us all we ever needed to know about her views on race, that there should always be racial considerations taken, the Constitution be damned.

    The Dana who ponders the future (af9ec3)

  78. Sotomayor says that affirmative action “opened doors” for her

    Isn’t that a little bit of what you folks call “an admission against interest” personally in the fight for ideology?

    Maybe I’m wrong, but I’m thinking most people would like to think they got where they are because they earned it and deserve it, not because they benefited from some quota.
    I guess she could argue that the fact that she succeeded proved that she earned it and deserved it, that the aa was needed only to open a door that would have been otherwise closed

    I guess it goes with the territory. I can’t imagine Condi Rice or Justice Thomas saying they got where they are because they benefited from affirmative action, whereas I guess Holder and Obama and Sotomayor wouldn’t mind saying it because they put the cause as bigger than their own self-esteem,
    but then again, maybe Holder and Obama would say, “speak for yourself, sweetie, we deserve to be where we are”.

    I am sure some of you know this better than I, isn’t there some book out where the author argues that affirmative action has actually hurt a lot of people? That for the sake of filling quotas at a top college or grad/law school some people who may have done well at a second tier college and gone on to a career instead failed to make the grade at an Ivy or equivalent?

    MD in Philly (f9371b)

  79. hopefully it opened the door to the kitchen for so she can go make me a sammich

    happyfeet (8ce051)

  80. MD, about Thomas,

    When Thomas applied to Yale Law School, his race was taken into consideration. He wrote in his book, “I asked Yale to take that fact into account when I applied, not thinking that there might be anything wrong with doing so.”

    But Thomas says that after he graduated from Yale, he went on several job interviews with “one high-priced lawyer” after another and the attorneys treated him dismissively. “Many asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated.”

    The fact that he couldn’t get a job would shape his thoughts on affirmative action programs for years to come. Thomas wrote, “Now I knew what a law degree from Yale was worth when it bore the taint of racial preference. I was humiliated—and desperate.”

    In his interview with ABC News, Thomas said he was unable, even when he was nominated to the Supreme Court, to erase the stigmatizing effects of racial preference. “Once it is assumed that everything you do achieve is because of your race, there is no way out.” he said. “…it is irrebuttable and it is proved to be true. In everything now that someone like me does, there’s a backwash into your whole life is because of race.”

    Dana (9f8700)

  81. 66. point taken, but there is no guideline they abide by;

    Clearest of all is Justice Antonin Scalia’s concurrence in the judgment, joined by Justice Clarence Thomas. “It has come to this,” Scalia begins portentously. “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”

    Comment by narciso (3fec35) — 4/22/2014 @ 2:09 pm

    But they do abide by certain guidance. And it comes from the wymyns, ethnic, victims’ studies department on every university campus. Where there is no objective truth. And if there were your white male privilege would prevent you from seeing it anyhow.

    Steve57 (013200)

  82. Which is why we need a wise Latina on the SCOTUS. Because only a wise Latina could have written that dissent.

    Steve57 (013200)

  83. Sotomayor rejects this “sentiment” as “out of touch with reality, and delivers 3 didactic paragraphs each of which begins with what might very well feel like a condescending use of the phrase “race matters.”

    Ann Althouse has some fun with the opinion as do her commenters:

    http://althouse.blogspot.com/2014/04/the-way-to-get-concurring-opinion-out.html

    Michael wrote: “You ever notice that in the bizzaro world occupied by our fellow progressives, it is those of us who wish to judge a man not by the color of his skin, but by the content of his character who are considered the racists?”

    AZ Bob (533fbc)

  84. I have two observations.

    Race-based affirmative action programs are sometimes permitted as a remedy for past racial discrimination that violated federal law. See e.g. United States v. Paradise, 480 U.S. 149 (1987) Proposal 2 does not, and indeed could not, restrict what remedies a state court may impose against Michigan or its subdivisions for federal law violations. The question of what remedies (including race-based remedies) a state court may prescribe for violations of federal law is purely a question of federal law, a question to which the U.S. Supreme Court reserves the final word. Thus, if a state university in Michigan engaged in discrimination against, for example, Ukrainians, Proposal2 would not stop a state court from requiring pro-Ukrainian affirmative action as a remedy for such discrimination.

    Another observation is that the Court restricted the Hunter/Seattle doctrine to laws that prohibit or discourage racial discrimination. Expanding Hunter/Seattle to laws against racial discrimination would yield results that would actually embed discrimination. For example, if a state were to pass laws forbidding racial segregation in public transportation, it would restructure the political process against those who favor racial segregation in public transportation (Brown v. Board of Education, 347 U.S. 483 (1954) does not generally apply to public transportation, so the federal constitutionality of racially segregated public transportation is controlled by Plessy v. Ferguson, 163 U.S. 537 (1896)) Thus, segregationists must appeal to the state legislature, or even the state’s constitutional amendment process, to enact racial segregation in public transportation. (This is likely the case in Michigan, as its constitution’s equal protection clause post-dates Brown.) Under the Sixth Circuit’s application of Hunter/Seattle, such a law violates the equal protection guarantees of segregationists. today’s ruling forecloses such a challenge.

    Michael Ejercito (becea5)

  85. While I understand Rohmer’s intent (banning state constitutional provisions that intend to politically hobble a minority or faction), it has been understood as a ban on Constitutional provisions that merely affect a minority or faction

    .
    the law struck down in Romer was not sexual orientation neutral

    Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

    Note that the word “heterosexual” is missing. In fact, a simple change in the text would place this amendment outside of the reach of Romer.

    Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation sexual conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

    Michael Ejercito (becea5)

  86. Equality of outcome, people. Get wid da program.

    Ed from SFV (3400a5)

  87. Mr 57 wrote:

    Which is why we need a wise Latina on the SCOTUS. Because only a wise Latina could have written that dissent.

    That’s absolutely right, and I hope to see her writing dissenting opinions on every case before the Court.

    The snarky Dana (3e4784)

  88. Got a chuckle out of that one.

    But I don’t want her dissenting in every case.

    I agree 85%. Unless she’s concurring in full with Anton Scalia as she did in this case, whether in the majority or in dissent, then I hope to see more of that kind of writing, too.

    If she’s going to vote with Scalia, her concurrence is as good as any other justice’s.

    Steve57 (013200)

  89. Comment by Dana (9f8700) — 4/22/2014 @ 8:01 pm

    Thank you for that bit of correction about the details of Thomas’ life, which actually strengthens the point I was making.

    MD in Philly (f9371b)

  90. The regime of stare decisis is just as doomed as the rest of the Federal corruptocrat omerta:

    http://www.zerohedge.com/news/2014-04-23/how-empires-collapse

    There is to path to correcting this ship’s attitude with respect to the horizon. It is holed, capsizing and going down.

    gary gulrud (384f70)

  91. The rationale for affirmative action was to guarantee that minorities can have equal opportunities. However, I point out that this same rationale could have been used to justify racial segregation in public schools. After all, when minorities had their own schools, that meant there was a guarantee of a minority being a valedictorian or cheerleading captain. It could have been further argued that segregating minorities in their own schools protected them from racial discrimination. After all, as the argument would go, if there were no white students, then there is zero possibility of a minority being passed over for cheerleading captain for a less-qualified white candidate. If schools were integrated, the racist administrators would make sure that the valedictorians and cheerleading captains were white, even if they were not the most qualified. In fact, i would not be surprised if such arguments were used by the Brown v. Board of Education appellees and supporting amici.

    And yet, even though segregation guaranteed that minorities have a chance at being valedictorians, cheerleading captains, and other high status positions in schools, on the basis that there would be zero possibility that a less-qualified white person would be given these honors and stati, somehow the Supreme Court found that segregation stamps a badge of inferiority.

    I wonder why they thought that.

    Michael Ejercito (becea5)

  92. That said, I find his argument on _Hunter_ unpersuasive. I think it’s clear that a state law creating a higher political process burden for an anti-discrimination law is an equal protection violation – it carves out anti-discrimination laws *specifically* and makes them more difficult to enact than ordinary legislation, which (in the case of the law in _Hunter_) had both the intent *and* the effect of making it more difficult to ensure equal protection.

    That’s what every constitutional provision does. The first amendment carves out censorship laws specifically and makes them more difficult to enact than ordinary legislation. The Republican Form of Government clause makes it more difficult for monarchists to enact their preferred changes to the law. The thirteenth amendment puts the same extra barrier before advocates of slavery. That’s what constitutional restrictions are for. This is why I was appalled at Roemer, and have never accepted that anybody, including the justices who voted for it, has ever actually believed in its so-called reasoning.

    Milhouse (b95258)

  93. The basic premise of Roemer was that advocates of anti-discrimination laws are themselves a protected class under the 14th amendment. Of course the very notion of “protected classes” contradicts the text of the 14th amendment!

    Milhouse (b95258)

  94. I think it’s pretty clear that in the early 1960s, taking the power to enact an anti-discrimination law away from a city council and vesting it in the state legislature and/or the state’s voters was clearly intended to, and had the effect of, making it harder to pass anti-discrimination laws.

    So what? What makes anti-discrimination laws different from any other kind of laws? Why should they be easier to make than any other kind? If the majority in the state disapproves of a particular kind of law, and doesn’t want localities to be able to make it, or else just wants that kind of law to be the same all over the state, what difference does it make whether the subject is speed limits or discrimination? So long as it isn’t a kind of law that the federal constitution requires a state to have anyway, why shouldn’t the state’s voters ban it, or require it to be uniform?

    Milhouse (b95258)

  95. The basic premise of Roemer was that advocates of anti-discrimination laws are themselves a protected class under the 14th amendment.

    that is not true.

    Romer did not state such a thing,.

    Instead, it held that if anti-discrimination laws were prohibited, they must be prohibited on an equal basis. This was not the case in Amendment 2m, which, as I explained above, still allowed Colorado to ” minority status, quota preferences, protected status or claim of discrimination” to heterosexuals.

    Nothing in Romer even hinted that states had a general duty to grant “minority status, quota preferences, protected status or claim of discrimination” to heterosexuals. But if a particular “minority status, quota [preference], protected status or claim of discrimination” was available to heterosexuals, then, at a minimum, the denial of the same to homosexuals must a rational relationship to a legi timate government interest.

    Michael Ejercito (becea5)

  96. Not exactly. It’s because we need an open discussion on race and this vote prevents it AND shut up.

    This vote doesn’t prevent any discussion. You can discuss anything you like; and the first amendment is there to prevent advocates of censorship from legislating to shut you up. If you support racial discrimination in university admissions, or banning guns — or censorship for that matter — you can discuss it all you like, but if you want to enact it you’ll have to amend the constitution first.

    Milhouse (b95258)

  97. On the other hand, not allowing the collection of statistical data makes it difficult to notice, and therefore difficult to address, racial discrimination.

    I think it would be naive to say that if we don’t measure it it will stop happening.

    It’s naive to think racial discrimination can be measured.

    Exactly. The entire basis for the statistical measurement of discrimination is the unfounded assumption that race/sex/whatever ought to be distributed equally in every field, so any discrepancy uncovered by statistics either proves discrimination, or at least creates a rebuttable presumption of discrimination. But that assumption is obvious nonsense. One shouldn’t expect perfect homogeneity in any area of the economy. There’s a reason taxi drivers in any given city tend heavily to be of one ethnic group (not the same one in each city). There are patterns that develop naturally in a free market, and there’s nothing wrong with that, and one shouldn’t expect it to be otherwise, let alone enact laws to force it to be otherwise.

    Milhouse (b95258)

  98. MD in Philly – in the short term the existence of the vouchers would cause an inflation in the cost of private education, as this huge number of students would be trying to get into existing facilities. Opening new schools in urban or suburban areas is difficult, at least in part because of rules which limit the activities of businesses or residents *in the vicinity of schools*, creating large opposition to the introduction of new schools.

    So accompany the introduction of vouchers with a state law exempting schools from zoning laws. Or just ban zoning laws altogether — the Supreme Court decision that allowed them in the first place was very poorly reasoned, and if you read it in the light of the following century’s history of zoning it’s clear that the majority had no idea what a monster they were unleashing. If they’d known how zoning would be used they would never have allowed it.

    Milhouse (b95258)

  99. Comment by Kevin M (b11279) — 4/22/2014 @ 12:02 pm

    The current entering class at Mudd is about 47% women.

    What reason is there to believe it will stablize at 50%?

    Sammy Finkelman (6ee5be)

  100. at least in part because of rules which limit the activities of businesses or residents *in the vicinity of schools*,

    I recall a case in Australia, where a dance school opened up next door to a legal brothel. The brothel complained that the gaggles of teenage and pre-teen girls hanging around outside were scaring away its customers. The planning tribunal agreed, and ordered the school to mitigate the nuisance or close. After all, the brothel was there first.

    Milhouse (b95258)

  101. Environmental health concerns are stronger in places where children congregate (for example) due to the difference in acceptable exposure levels for children than for adults. I’m less sympathetic to the rules that restrict where alcohol-selling establishments, or porn vendors, or the like can be … but the voters tend to like them,

    Whether such rules are rational or not, if a school opens in an area where such establishments already exist, it should be estopped from ever complaining about them. Just as people who buy cheap houses next to an airport should in my opinion be estopped from ever complaining about the noise.

    Milhouse (b95258)

  102. My alma mater, Harvey Mudd, decided about 20 years ago that there needed to be more women in what is now called the STEM fields.
    [...] instead of watering down their degree by lowering admission standards, the actively recruited qualified women to consider their school, and science, engineering or computer science as fields of study. [...]
    The value of a Mudd degree does not seem to have been hurt much.

    Why did there need to be more women in those fields? In what way were those fields suffering from the lack of women?

    If they were concerned that talent which could have gone into those fields was being lost to inferior occupations, then it made sense to go out of their way to recruit this talent. But if they were getting enough talent already from the male applicants, why was it important to change the mix? In other words, if this advertising campaign did not cause the value of a Mudd degree to go up, by raising the college’s technical standards rather than merely keeping them constant, then I don’t see how it can be justified.

    Milhouse (b95258)

  103. Best of the Web on April 22 called it a doctrinal muddle as the court split 3 ways:

    First Among Equals An Orwellian dissent from a muddled ruling.

    Sammy Finkelman (d22d64)


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