Hello Mikie,

But I’m not sure your characterization of AA is correct. There’s strong arguments in favor of it.

Could you elaborate on some of them? Otherwise, I am unsure as to what about my characterization is incorrect.

Every one of these controversial cases are along party lines. When things are so predictable, you know it’s not a matter of a fair assessment of evidence — it’s foregone.

Everything you said along these lines is perfectly accurate: I am not trying to defend dogmatic political actions but, rather, I was just agreeing with their decision on AA (regardless of why they chose to decide such). I just happen to agree that AA is wrong, if that makes sense.

Bob

I just happen to agree that AA is wrong, if that makes sense. — Bob Ross

Fair enough. Like I said, I myself am open to god faith arguments about it and don’t hold a staunch position.

And incidentally, you don’t have to put “Bob” after every post— we know it’s you! :grin:

My guess is they were elected elected by a board and shareholders based on their talent. Why do you think there are four black CEO's in the Fortune 500?

Why do you think there are four black CEO's in the Fortune 500? — NOS4A2

Because there are still black people alive who remember when de jure discrimination existed (separate but equal). Racism is still alive and well in 2023. Your explanation that of a lack of talent causes black people to be underrepresented in the Fortune 500 by an order of magnitude is absurd, and I think you know that.

Affirmative action was an attempt to force fairness by doing something that wasn't fair. Did it do more good than harm? I don't know if there's any way to quantify.

I never said a lack of talent caused black people to be underrepresented. I said those CEOs were probably hired due to their talent. I think you know that.

If you prove one CEO wasn’t hired solely due to his race, then that’s all you’ve proven. Assuming you can do that, which you haven’t, it is absurd to make the same assumption to every other case. But these are the sorts of fallacies required to uphold any racist view, for instance the idea that a group is misrepresented due to the fact of their skin color, and no other measure.

Yeah, the same reason women film directors are so rare: just not talented enough. It’s all merit based. Remember: racism and sexism have been declared over in America.

So 4 black CEOs? Has nothing to do with racism. There just happens to not be enough black people that boards of old white guys find talented enough. Nothing to see here.

Next year: Supreme Court declares class has no impact on one’s opportunities in life, thus making it so.

I have no idea how such a determination may be made But the statement that a person must not be treated on the basis of race seems rather clear. — Ciceronianus

The part of the decision you cited lays out EXACTLY how that determination is made.

In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race. — Majority Opinion

They use the passage you quoted to EXPLICITlY clarify that experiences stemming from race, whether they be racial injustices personally experienced (which could include systemic racism), racial identity as a means to empowerment, or otherwise are valid forms of acceptance metrics. Just that race in-and-of itself is not. A prospective student is free to explain how their racial identity forms their worldview, ethics, etc... but the selection committee must look at the individual's experiences, rather than their stated race to make the final decision. That much is clear from the passage you cited, so your confusion about determinations is puzzling.

Perhaps if you had read the very next sentence it would have been hammered home even further:

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice. — Majority Opinion

Racial inequities faced in life can be "challenges bested", overcoming systemic racism can be a skill, and racial/cultural/socioeconomic differences can lead to important lessons about diversity or the lack thereof, and all are EXPLICITLY valid according to this BINDING opinion.

What Justice Gorsuch concludes regarding Title VI, in this case, is no more binding on a court (and of no more importance to me) than is the ass of a rattus rattus. — Ciceronianus

Of course it's not binding, nowhere did I say it was. The fact that you immediately dismiss concurring (and I assume, dissenting) opinions even in terms of their usefulness and veracity is a sad state of affairs. Unless I've mistaken your affinity towards rats?

What Justice Gorsuch concludes regarding Title VI, in this case, is no more binding on a court (and of no more importance to me) than is the ass of a rattus rattus.
— Ciceronianus

Of course it's not binding, nowhere did I say it was. — Voyeur

Well, try to understand I've never before been asked to render a legal opinion on what a court didn't say in deciding a case, or about a holding it didn't make. It's not something that's come up in my practice. I assumed you were trying to address the actual decision in question.

And yes, concurring opinions and dissents are generally unimportant in the actual practice of law. I don't advise clients they have a good chance of success based on a dissent or a concurring opinion which differs from the rationale of the majority.

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice. (majority decision)

I suspect that the musings made in the closing paragraphs of the majority opinion will come to be reqarded as dicta, depending on the spin it's desired to make.

Regardless, consider. An applicant may submit an essay regarding the wrongs experienced due to racial discrimination. So, the applicants race may be mentioned in the application process. A person reading the essay will, without much effort, rightly infer the applicant to be a member of the race discriminated against. So, the applicant's race will be known by those making the admission decision.

According to the majority, those making the admission decision may consider the impacts of discrimination against the applicant because of race (e.g. because the applicant is black) in coming to a decision. But, the admission decision cannot be made because the applicant is black, despite the fact that there would have been no discrimination, the impacts of which may be considered, had the applicant not been black.

Where does the black go? Applicant X should be admitted because of characteristics and abilities arising from discrimination against the applicant because the applicant is black (characteristics and abilities which presumably would not have arisen but for the racial discrimination), but that doesn't mean the fact the applicant is black figured in the decision to admit? It doesn't work, I'm afraid.

Well, try to understand I've never before been asked to render a legal opinion on what a court didn't say in deciding a case, or about a holding it didn't make. It's not something that's come up in my practice. I assumed you were trying to address the actual decision in question. — Ciceronianus

An actual decision is useful for more than just it's legal impact. Even concurring and dissenting opinions are valuable barometers for where the legal establishment may be on an issue, as has been evidenced many times in history via famous dissents like Dred Scott, Korematsu, and even Plessy v Ferguson. To dismiss those dissents (as well as concurring opinions), because they have little current use in the courtroom is to miss the point of the dissents/concurrences altogether. They are not written for the courtroom, they are written on and for the issue. Otherwise why write them, if they have no value?

According to the majority, those making the admission decision may consider the impacts of discrimination against the applicant because of race (e.g. because the applicant is black) in coming to a decision. — Ciceronianus

Correct.

But, the admission decision cannot be made because the applicant is black, despite the fact that there would have been no discrimination, the impacts of which may be considered, had the applicant not been black. — Ciceronianus

Do you treat all black people the same? Because all black people are black? Or do you treat them differently based on their personal characteristics, many of which are directly derived from their racial/cultural experiences of being black in a world of systemic racism?

Where does the black go? — Ciceronianus

This is a facetious question. It stays in the equation, it's just not the sum total at the end.

Applicant X should be admitted because of characteristics and abilities arising from discrimination against the applicant because the applicant is black (characteristics and abilities which presumably would not have arisen but for the racial discrimination), but that doesn't mean the fact the applicant is black figured in the decision to admit? It doesn't work, I'm afraid. — Ciceronianus

It DOES mean the fact that the applicant is black figured into the decision. What you summarized there is EXACTLY HOW it DOES work. It was FACTORED IN (via the experiences an individual who is black ACTUALLY faced), it was not DETERMINED solely by racial group.

If that doesn't make sense to you, I'm not sure we have anywhere further to go, because the majority opinion devotes many words to explain exactly how that works IN PRACTICE going forward (and how it does NOT work). If you can't see the nuance of that position, then you're not going to be willing to see any other point either.

To dismiss those dissents (as well as concurring opinions), because they have little current use in the courtroom is to miss the point of the dissents/concurrences altogether. They are not written for the courtroom, they are written on and for the issue. Otherwise why write them, if they have no value? — Voyeur

I suspect they may be written for a number of reasons. Perhaps they'll turn out to be useful, sometime. In the here and now, in which a lawyer practices--in which decisions are made, people are impacted, lives are led--the majority opinion determines the law. What the law may be or could be in other circumstances, or should be, is a matter of speculation, and sometimes wishful thinking.

Do you treat all black people the same? Because all black people are black? Or do you treat them differently based on their personal characteristics, many of which are directly derived from their racial/cultural experiences of being black in a world of systemic racism? — Voyeur

Do you treat all people the same? Or do you acknowledge that some of them should be treated differently "based on their personal characteristics, many of which are directly derived from their racial/cultural experience of being black in a world of systemic racism?"

I think the majority contends that the Equal Protection Clause provides that all applicants must be treated the same. At the same time, however, they state that the Equal Protection Clause allows some of them to be treated differently due to "their racial/cultural experience of being black (for example) in a world of systemic racism." It would seem to me essential that one must be black to have the "racial/cultural experience of being black in a world of systemic racism."

It DOES mean the fact that the applicant is black figured into the decision. — Voyeur

Yes. Race is necessarily a factor, as those having the qualities the majority thinks merit consideration will have them because they're black. Now, though, it's necessary that in order for the race of an applicant to be considered, the applicant must establish that they have those qualities due to their race.

Affirmative Action may have presumed that discrimination takes place, and for that reason those discriminated against should be favored. The majority aren't brazen enough to claim that it has ceased entirely, though they seem to take the position it no longer creates a problem to be remedied and so no longer may be presumed. I think the majority tries to allow race to be considered while maintaining it can't be considered. It simply has made it more difficult for race to be considered, placing the burden on those who've been discriminated against to establish that the discrimination they suffered due to their race has rendered them worthy of consideration despite their race.







.

IMO, in an egalitarian merit-based – color-blind, race-neutral & gender-neutral – society, (A) legacy preferences for scarce social goods like higher (elite) education would be prohibited by law; also, at minimum, (B) admissions hiring & promotions at all public institutions and nonprofit firms would be regularly conducted by monitored lotteries of eligible candidates from well-regulated pools of qualified applicants; and lastly, (C1) inheritance of over e.g. $1 million (USD) would be taxed at 100% (minus $1 million) and/or (C2) payroll taxes (targetted for funding social security & other social welfare programs) on income would not be capped – or excluded from capital gains (collect via e.g. Tobin Tax) – as they always have been, AFAIK, in the US.

All feasible reforms applicable within the current American legal and fiscal system which, no doubt, would be violently opposed by (both Dems & GOP) plutocrats/oligarchs, their managerial class flunkies and the 24/7 media-triggered reactionary populist (e.g. patriarchal white supremacist) rabble. :brow:

Legacy preferences should certainly be prohibited. So, I believe, should so-called "development cases" where preference is given to the children of wealthy donors. Or perhaps they could write essays describing how being legacies or the children of rich parents has resulted in the development of the individual qualities the majority admires which would contribute to the institution in question, in which case....

What do you think?

https://www.cnn.com/2023/07/03/us/harvard-college-legacy-admissions-lawsuit/index.html

As a non-lawyer I suspect that if this lawsuit rises to the level of SCOTUS review, the Supremes will vote 6-3 in favor of pro-"legacy preference", etc.

One thing about the Affirmative Action decision and the legacy issue: The number of colleges where affirmative action, legacy admissions, and the like are major issues is small, mostly limited to a a small number of elite institutions, like Harvard. There are other colleges -- about 4,000 4 year colleges and universities, running the gamut of excellence. Many of these colleges admit large percentages of applicants to their very big campuses.

Just for perspective, if you don't insist on going to one of the very choosy, very expensive, very rich, very competitive schools, you have hundreds of good to excellent -- and much more affordable -- colleges to choose from. A degree from U of Nebraska or U Washington might not give a student the same entree as a degree from Harvard, Yale, or North Carolina, but if they choose majors which are likely to lead to employment, work hard for high grades, then they have a good chance of making a quite good living. They may not make it into the elite on the basis of their alma mater, but... tough bounce.

The large land-grant institutions (U of Michigan, U of Wisconsin, U of Minnesota, etc.) admit large shares of their applicants, so affirmative action is in many cases much less an issue. True enough, these institutions can afford to wash out a substantial number of first year students and still have large graduating classes. Some private colleges also practice relatively open admission--it isn't ONLY public colleges.

Informative article from NYT 7/3/23

https://www.nytimes.com/interactive/2023/07/03/opinion/for-most-college-students-affirmative-action-was-not-enough.html

It has not been a good couple of years for this Supreme Court.
Public confidence in the court as an impartial arbitrator of the law as opposed to just another political branch is at an all time low and not likely to recover soon.
I am beginning to think lifetime appointments are not a good idea and are giving us a court well out of touch with mainstream public opinion, the present and the likely future.
Packing the Court seems like a bad idea and one not likely to solve the problem
I have begun to think term limits (the 18 years and then revert to a lower federal court) which would allow and new justice to be appointed every two years (each session of congress) would help keep the court better in line with and more able to serve the society.
The affirmative action decision actually has majority public support but only because the history and present reality of systemic and institutional racism are something not experience or understood by the majority but lets not talk about teach or examine critical race theory (especially in Florida).

As a non-lawyer I suspect that if this lawsuit rises to the level of SCOTUS review, the Supremes will vote 6-3 in favor of pro-"legacy preference", etc. — 180 Proof

I thought this decision would spawn litigation, but this is pretty fast work on the part of plaintiffs' lawyers. Of course, the decision will also have the result that those involved in admissions decisions will be bombarded with essays of the kind the majority so blithely referenced at the conclusion of their opinion. But I think the decision will create all sorts of legal advocacy.

A court which held, previously, that spending money is speech in Citizens United and is now composed of even more justices with a similar mindset isn't likely to find any problem with a "legacy preference" or with preference being given to the children of large donors to an institution of higher education.

Still, it will be interesting, and revealing, how this litigation proceeds.

Perhaps they'll turn out to be useful, sometime. — Ciceronianus

Exactly. This is the point I made previously, glad we can agree.

I think the majority contends that the Equal Protection Clause provides that all applicants must be treated the same. — Ciceronianus

You clearly have a fundamental misunderstanding of the opinion that no amount of discussion will help you understand. Your quote above is NOT what the majority opinion is saying. Not all applicants must be treated the same because then there would be no basis on which to accept/reject any applicants. And before you claim to have meant "criteria", it is totally within the law to have different criteria for different applicants (such as the elderly and people from different geographical regions).

Now, though, it's necessary that in order for the race of an applicant to be considered, the applicant must establish that they have those qualities due to their race. — Ciceronianus

Yes. Race is necessarily a factor, as those having the qualities the majority thinks merit consideration will have them because they're black. — Ciceronianus

Exactly wrong. The applicant must establish that they have certain qualities based on their experience. Now, their experiences can absolutely be impacted by their racial/cultural identity, and they are free to elaborate on that, but qualities are not determinable by race, says the majority. Assuming someone has certain characteristics/qualities based on their race is the classical definition of racism, by the way. Your wording isn't clear on whether you believe this (though it is a declarative statement), but if you believe some people have certain qualities (non-biological but rather personal/social) BECAUSE of their race, I find that incredibly problematic.

Do you treat all people the same? Or do you acknowledge that some of them should be treated differently "based on their personal characteristics, many of which are directly derived from their racial/cultural experience of being black in a world of systemic racism?" — Ciceronianus

Couldn't have said it better myself. This is exactly the question to the majority is asking to Harvard/UNC, and they have found that the answer is that they DO treat people differently, not only because of their personal characteristics, but also because of their race in general (i.e. assuming that people of different races by definition have different qualities).

...they state that the Equal Protection Clause allows some of them to be treated differently due to "their racial/cultural experience of being black (for example) in a world of systemic racism." It would seem to me essential that one must be black to have the "racial/cultural experience of being black in a world of systemic racism." — Ciceronianus

Exactly (leaving aside the idea of someone who is trans-racial or racially fluid, which I don't have enough knowledge to speak about).

You are there in the end, the above quote is how it works, and the key idea you need to understand is that a causal chain can have many links. According to the Supreme Court, being black in and of itself does not CAUSE you to have certain qualities, but it CAN cause you to experience circumstances that (by means of your response to those circumstances) creates those certain qualities.

I'm unable to make the distinction you seem to make along with the majority, which you describe as follows:

According to the Supreme Court, being black in and of itself does not CAUSE you to have certain qualities, but it CAN cause you to experience circumstances that (by means of your response to those circumstances) creates those certain qualities. — Voyeur

So, being black can cause you to have certain experiences. You have them because you're black. You wouldn't have them, then, if you weren't black.

The experiences you have which are caused by the fact you're black can cause you to have certain qualities, but you don't have them because you're black. Yes?

But if they're caused by experiences resulting from the fact you're black, must it not be the case that you have them because you're black? You wouldn't have had those experiences but for the fact you're black. You wouldn't have had them if you were white, for example.

Just for posterity / reference:

The major Supreme Court cases of 2022-2023:

• Students for Fair Admissions v. Havard
  Affirmative action case. Decided 6-3.
  
  
• Moore v. Harper
  "independent state legislature" theory and gerrymandering. Decided 6-3.
  
  
• Biden v. Nebraska
  Student loan forgiveness. Decided 6-3.
  
  
• 303 Creative v. Elenis
  Gay rights. Decided 6-3.
  
  
• Allen v. Milligan
  Alabama voting rights. Decided 5-4.
  
  
• Glacier Northeast v. Teamsters
  Unions and strikes. Decided 8-1.
  
  
• Sackett v. EPA
  Re: waters of the US with "continuous surface connection." Decided 9-0, but 5-4 on rationale.

Not surprising, most were terrible.

Looks like this reactionary court will now overturn Chevron.

From Balls & Strikes:

For normal people who want to live in a country not ravaged by periodic outbreaks of foodborne illness, the end of the administrative state as we know it is bad news. But this slurry of confusion, delay, and incompetence is exactly what the conservative legal movement hopes to bring about.

Killing Chevron is a two-for-one deal for Republicans, who do not have an affirmative vision for regulation so much as they oppose the very concept, because they want to keep their billionaire cryptkeeper benefactors unburdened by any obligation to protect factory workers from getting maimed by heavy machinery. Burying understaffed chambers in terabytes of non-OCRed PDFs will make the day-to-day task of running this country even harder than it already is. It will also turn conservative dogma about the evils of Big Government into something of a self-fulfilling prophecy: To the extent that government works right now, it won’t anymore, because conservatives made sure of it.

Spot on.

Get an AWS server, install this:

LegalFly

Train on previous court cases and evidence then upload all the evidence submitted and fire away any questions you have.

In the netherlands, by the way, a judge told a company to go fuck itself and provide a 25 page summary of the evidence they were submitting in support of their argument and he simply refused to review it. Companies here have a tendency to swamp the opposition (and courts) with much more paperwork than needed, causing a barrier for natural persons to sue companies. Judges here don't like it and his decision was widely applauded and will likely act as precedent.

:up: