affirmative action

From The “Eternal Vigilance Is The Price Of Liberty”: A Law Firm Is Caught Inflicting “Good Racial Discrimination” And Backs Down

/ Jack Marshall / 4 Comments

The scary part is that a major law firm really thought it would be legal to do this, or perhaps knew it wasn’t legal but thought it could get away with it anyway.

The law firm Morrison Foerster, based in San Francisco, was sued for excluding non-minority students from its so called “diversity fellowships,”described as a program for first-year law students who are members of “a diverse population that has historically been underrepresented in the legal profession,” such as black, Hispanic, Native American and LGBTQ+ individuals. The plaintiff in the suit was the American Alliance for Equal Rights (AAER), founded by same conservative activist who brought the lawsuits that resulted in the Supreme Court finally declaring affirmative action in college admissions what it had always been: unconstitutional racial discrimination.

A few weeks after the lawsuit was filed, the firm removed all references to race from the program page on its website, an implicit statement that “OK, you caught us. Never mind!” The program now is described as

designed to recognize “exceptional first and second-year law students with a demonstrated commitment to diversity and inclusion in the legal profession.” In other words, the firm is substituting viewpoint discrimination for racial discrimination.

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Ethics Dunce (But We Knew That): The American Bar Association

/ Jack Marshall / 21 Comments

The ABA’s House of Delegates this week approved a resolution urging law schools to give either academic credit or monetary compensation to their students who serve as editors of law reviews or other academic journals. This is right in line with the logic that has college football and basketball plantations paying their student athletes, who already are getting scholarships and often diplomas they couldn’t justify based on their academic skills. Paying or otherwise compensating students who serve as law journal editors is just as reasonable, which is to say that it isn’t reasonable at all. In fact, the proposed practice, which some law schools already embrace, is unethical.

Reuters, in its news article about the ABA’s most recent intrusion into matters they ought to steer clear of, inadvertently explains why this concept is wrong-headed. It notes that these positions are “sought-after credentials that can bolster a law student’s job prospects.” Exactly, which means that students would gladly pay the law schools to get them. Being appointed as a law journal editor is its own reward: why should the recipients be paid for it too? Indeed, if the ABA’s reasoning applies, why only the editors? The other members of the law journals staffs are also providing valuable services to the school, its alumni, and the legal profession. They should be paid as well, or, to put it another way, none of the law journal staff should be paid, including the editors, just as student athletes shouldn’t be paid.

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Nice Try, Columbia! (Well, Not Really…)

/ Jack Marshall / 8 Comments

Universities and colleges have made it pretty clear so far that they fully intend to continue to engage in “good racial discrimination” in admissions despite the Supreme Court finally declaring affirmative action what it is and has always been: unfair, illegal and unconstitutional. Chief Justice John Roberts, who wrote the majority opinion in the Harvard and University of North Carolina cases, inadvertently (or not) gave the green light for this: he noted that a black applicant could still get an edge by signalling his or her diverse “experiences” and exemplary character in the face of adversity by writing an essay about dealing with the traumas of racism. Now administrators know they can favor black applicants over white and Asians (who can be seen above at Harvard demonstrating for discrimination against themselves) on the basis of race if they’re clever enough about it.

This wasn’t clever enough: Columbia Law School’s admissions page on its website this week announced that “all applicants” had to submit a 90 second video answering a “question chosen at random.” You know, like “What race am I?” The requirement was supposedly intended to “allow applicants to provide the Admissions Committee with additional insight into their personal strengths and academic or other achievements.”

All it took was a wave of critical social media posts flagging Columbia’s lame trick to persuade the law school that it needs to come up with something else. The video requirement didn’t even last the day.

A spokesperson told reporters that the video statement requirement was “posted in error.”

Sure.

Joy Reid, Harvard, Althouse, And Affirmative Action

/ Jack Marshall / 6 Comments

Straining to engage in her trademark “cruel neutrality,” esteemed blogger Ann Althouse stepped up to defend MSNBC’s Joy Reid and stepped in it, as the idiom goes, in the process. Ann defended Reid, claiming that she never said or implied that she was admitted to Harvard because of affirmative action.

“I think Ramaswamy is distorting (or, less likely, not hearing and understanding),” Ann wrote in part. “…She says she got high grades and test scores in high school, but she wouldn’t have thought to try for Harvard if Harvard hadn’t come out to her small, majority-black town and recruited. She was strongly encouraged to apply. The Supreme Court hasn’t changed the power of schools to recruit in places like hers. Reid never says her scores and grades wouldn’t have been enough if she were not black.”

Uncharacteristically, Althouse didn’t do her homework. In the MSNBC segment, Reid was basically regurgitating her blog post saying the same things, and that was headlined, “I got into Harvard because of affirmative action. Some of my classmates got in for their wealth.”

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Ethics Quiz: “Erica Marsh” [Corrected]

/ Jack Marshall / 30 Comments

The tweet above has “gone viral” with its seemingly approving statement of the underlying arguments being raised in protest of yesterday’s SCOTUS decision ending affirmative action in universities. Conservative pundits and wags are using it to mock the hypocrisy and racism of progressives, some apparently believing the tweet is sincere, others believing it is satire but treating is as genuine anyway. The low-IQ quadrant of Woke World like the tweet because its denizens can’t detect its glaring idiocy; the smarter segment is outraged at the tweet’s blood-drawing power, and reacting like this:

Before I pose today’s ethics quiz question, here are a few things to consider:

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The Affirmative Action Demise Freakout

/ Jack Marshall / 9 Comments

In some respects the Left’s reaction to Students For Fair Admissions, Inc. v. President and Fellows of Harvard College is more disturbing, if less hysterical, than its response to the elimination of Roe v. Wade. The near complete disregard for Constitution and the principles it represents being displayed is stunning, and a warning. Robert Kennedy, Jr., who may be a wacko regarding vaccinations but who is as about as representative of the current state of the Democratic Party and Woke World as an individual can be, was usefully specific, tweeting,

“Regarding the Supreme Court banning affirmative action in higher ed — I know many Americans feel that purely race-based decisions are unfair. However, this feeling misses important context. The effects of racist policies going back centuries are now self-perpetuating. Affirmative action understands this and uses race-based policies to undo the effects of racist policies. ‘Color-blind’ admissions tend to favor those who are already in the circle of privilege. It favors those who grew up in affluent, educated households. Wouldn’t you like to invite in those who have been left out in the cold?”

And there it is. “It’s  okay, in fact the right thing to do, to deliberately violate the Constitution and ignore U.S. law if it serves ‘the greater good’ and our judgment regarding the needs of social justice.” That has become the entire operating philosophy of the Democrats. It can be seen as one that would open the door to unlimited totalitarian abuses. This is why the First, Second and Sixth Amendments, the Equal Protection Clause, Due Process and the entire Constitution itself are under sustained attack to undermine it in the eyes of an ignorant public we allowed to grow to adulthood without ever being adequately educated about the importance of the Founding documents. Bobby Jr. explains: if Constitutional restrictions favor the “wrong” people, then to hell with the Constitution. The direct line from his reasoning to government censorship of speech should be obvious (but since the news media won’t draw that line, or is too inept to do so clearly, it won’t be to the dim Americans who need to see it most.

RFKJ’s last argument, “Wouldn’t you like to invite in those who have been left out in the cold?” is a another classic hide-the-ball, bury-the-lede, “its isn’t what it is” con. He is really asking the tribal interests that support his party, “Wouldn’t you like to have a fist on the scales giving your race/ethnicity/sex a permanent advantage in everything you do?

We should be grateful to Kennedy for being comparatively honest. President Biden, who hasn’t read the decision, had the gall to say, “This isn’t a normal Court,” again darkly suggesting malign intent—from its enforcement of the Constitution, its duty. Journalists and pundits are giving us a vivid picture of what we can expect in the upcoming election campaign with deceptive, misleading or written-for-morons headlines like:

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SCOTUS Strikes Down Harvard’s Affirmative Action Admissions Policy

/ Jack Marshall / 28 Comments

Good.

Much about this was predicted and predictable: the split, 6-3, in which the diversity trio (A wise Latina, the historic black woman, and a lesbian) took their required stand, and the decision’s spokesjustice, Roberts, who had signaled this result by famously saying, last time around this controversy, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” However, many thought the opinion would ultimately provide wiggle room for colleges, and it does not. From the opinion, here, by Chief Justice Roberts, who reflected on Justice Sandra Day O’Connor’s observation in a previous affirmative action case that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today” (which signaled that the Court was allowing an exception to Constitutional requirements continue for a limited period):

Twenty years later, no end is in sight. “Harvard’s view about when [race-based admissions will end] doesn’t have a date on it.” Tr. of Oral Arg. in No. 20–1199, p. 85; Brief for Respondent in No. 20–1199, p. 52. Neither does UNC’s. 567 F. Supp. 3d, at 612. Yet both insist that the use of race in their admissions programs must continue.

But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment….

It is true that our cases have recognized a “tradition of giving a degree of deference to a university’s academic decisions.” Grutter, 539 U. S., at 328. But we have been unmistakably clear that any deference must exist “within constitutionally prescribed limits,” ibid., and that “deference does not imply abandonment or abdication of judicial review,” Miller–El v. Cockrell, 537 U. S. 322, 340 (2003). Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.

I particularly want to applaud Roberts’ clear statement that the use of “diversity” by colleges to justify discrimination is undefined, pie-in-the-sky hooey, if not outright flim-flammery:

Unlike discerning whether a prisoner will be injured or whether an employee should receive backpay, the question whether a particular mix of minority students produces “engaged and productive citizens,” sufficiently “enhance[s] appreciation, respect, and empathy,” or effectively “train[s] future leaders” is standardless. 567 F. Supp. 3d, at 656; 980 F. 3d, at 173–174. The interests that respondents seek, though plainly worthy, are inescapably imponderable.

Later, the Chief chides Harvard et al. for the obvious phoniness and arbitrary nature of their categories:

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Where Reporting Ends And Propaganda Takes Over: The NYT On Affirmative Action

/ Jack Marshall / 22 Comments

Dominating today’s New York Times front page (above) is a report headlined “How It Feels to Have Your Life Changed By Affirmative Action” online and “Inside the Lives Changed by Affirmative Action” in the print version of the Times. The piece is naked and blatant advocacy for the Constitution- and U.S. law-violating policy that has been given temporary pass by a conflicted Supreme Court multiple times despite an unavoidable fact: it’s discrimination, and the Constitution doesn’t distinguish between good discrimination and bad discrimination. By the principles and values this nation was founded upon, all discrimination on the basis of qualities like religion, race, gender and ethnicity is wrong.

The Times approach to the subject is similar to its coverage of the illegal immigration controversy. In that matter, as periodically pointed out by Ethics Alarms, the Times has given readers frequent heart-warming tales of “the good illegal immigrant,” a hard-working immigration law violator who is the salt of the earth, a wonderful parent, and yet cruelly held accountable for his or her law-breaking anyway. The motive of such articles seems clear: use emotions to overcome and blot out law, ethics, fairness and common sense. As the Supreme Court seems poised to finally call college and university affirmative action programs what they are: illegal, the Times is trying to build support for its favorite party’s inevitable accusations of racism and illegitimacy against the five or six justices who will have simply done their jobs.

The headlines tell it all. Affirmative action changed the lives of its beneficiaries for the better, so obviously, affirmative action is good, and ending it would be unethical. What is striking about the article is that none of the affirmative action beneficiaries—all black—interviewed appear to have given a second’s thought to the individual whose opportunity they seized because of their “better” color. Some express regrets because they faced, or felt like they faced, skepticism about their degrees or career accomplishments because they were presumed to be “undeserving” affirmative action beneficiaries. None hint at any regret that someone who deserved to be accepted to an elite school or program was not so they could be.

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Mark Your Calendars: The Next Anti-Supreme Court Freak-Out Is Scheduled For June

/ Jack Marshall / 7 Comments

In 1978’s Bakke decision, a fractured majority of the Supreme Court found that universities could consider race to build a diverse student body, agreeing that educational benefits could flow from diversity. At the same time, the opinion prohibited quotas, requiring universities to undertake a “holistic” review of each applicant in which race could be a factor. The Supreme Court affirmed this foggy principle in 2003’s Grutter v. Bollinger and again in 2016’s Fisher v. Texas. Schools, meanwhile, became adept at making sure that holistic approach resulted in the desired racial proportions.

Now the Supreme Court appears ready to rule that the race-conscious admissions programs at Harvard and the University of North Carolina are unlawful. Five hours of arguments and questioning in the two cases’ oral presentations before the justices made that abundantly clear, but it was already clear long before. The cases’ decisions won’t be handed down until June 2023 (unless that majority opinion gets leaked too), but the Left is already laying the groundwork for a Dobbs-like freak-out.

The clear media talking point memo apparently requires all stories to call such a decision ” a move that would overrule decades of precedents.” But this is deliberately disingenuous. From the beginning, the Supreme Court allowed colleges and diversities to use race in their admission procedures while acknowledging that it was a special exception to the equal protection requirement of the 14th Amendment that was necessitated by the unusual circumstances of slavery and Jim Crow. (It was, in fact, a perfect example of the Ethics Incompleteness Principle, where a valid rule did not work well in a unique situation, and thus s special, unique solution had to be crafted that does NOT serve as a precedent.) Justice Sandra Day O’Connor admitted as much in her opinion in Grutter v. Bollinger (2003), concluding that affirmative action in college admissions is justifiable, but not forever: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.”

It was a bad and confusing opinion: if the law and the Constitution is the same, why would it be acceptable to violate it then but not 25 years later? It is now 19 years later; 25 years was not a scientific estimate, but just wait: one of the arguments that will be aimed at the SCOTUS opinion in June will be that it’s “too soon.”

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Déjà Vu Ethics: The Washington Post Is Stunned To Find That The Public’s Attitude Toward Affirmative Action Hasn’t Changed In 50 Years.

/ Jack Marshall / 1 Comment

I’m not, nor should anyone else be surprised.

Writes the Post:

More than 6 in 10 Americans support a ban on the consideration of race in college admissions, according to a Washington Post-Schar School poll, but an equally robust majority endorses programs to boost racial diversity on campuses….On Oct. 31, the justices will hear arguments in cases challenging race-conscious admissions at Harvard University and the University of North Carolina at Chapel Hill.If the court’s conservative majority reverses decades of precedent and prohibits the consideration of race and ethnicity, the Post-Schar School poll conducted this month finds 63 percent of adults would support the change. At the same time, 64 percent say programs designed to increase racial diversity of students are a good thing. Support for boosting diversity is high across racial and ethnic groups, while Black Americans are less supportive of banning race as a factor in admissions than people of other backgrounds.

Does this even qualify as news at this point? Back at the very start of the affirmative action movement in colleges and universities, polling always showed that the public objected to “racial quotas,” meaning that race and color would be a decisive factor in admitting college applicants, but if quotas were vaguely framed as “affirmative action,” meaning “let’s do something to avoid perpetuating a permanent underclass in American society by increasing the proportion of minority college graduates,” then the public was substantially favorable. Has any public policy question ever been more vulnerable to polling manipulation by choice of words?

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