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

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.

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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Over 60 American Companies Want To Ignore The Constitution For “The Greater Good”

You’re on, Geena!

Indeed, be very, very afraid.

Next term, the Supreme Court will hear two high-profile cases challenging affirmative action policies at the University of North Carolina and Harvard College. The court just barely upheld affirmative action in 2016, but it seems likely that the current Court’s composition is unlikely to allow it to continue. This is a good thing, though those who benefit from racial discrimination not surprisingly are horrified by the prospect. John Roberts mysteriously shocking quote the last time around— “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—is pretty much indisputable. As in a growing number of areas, the American Left simply does not like the U.S. Constitution. In the area of colleges and grad school admissions, this is because the document requires that all races be treated equally under the law. Continue reading

Judge Ketanji Brown Jackson Pledges To Recuse Herself From The Harvard University Affirmative Action Case

And that, as they say, is that.

I was wrong, Prof. Turley was right. He was certain that Jackson would recuse from the case because of the screaming conflict she faced by sitting on Harvard’s Board of Overseers. He wrote,

“It would be profoundly inappropriate for a jurist to sit on a case for a school in which she has held a governing position and a role in setting institutional policies. This would be akin to a justice sitting on a case on oil leases for Exxon while being a member of the oil company’s board of directors.”

I wrote, “That’s exactly right. But I bet Jackson doesn’t recuse.” Continue reading

Integrity Test: Judge Ketanji Brown Jackson Will Be Conflicted Out Of The Harvard Affirmative Action Case If She’s Confirmed. Which Progressives Will Have The Ethics To Say So? [Corrected]

And will she?

Stipulated: Judge Jackson is a fully qualified choice to succeed Justice Breyer on the U.S. Supreme Court. Also stipulated: she should be and will be confirmed and by a large majority, unless Republicans are as petty and foolish as I think they are.

However, the soon to be Justice Jackson has an unwaivable conflict of interest in the contentious Harvard admissions case, which I would term a “scandal.” Harvard unambiguously discriminates against Asian-American applicants to inflate the numbers of lesser qualified black and Hispanic students admitted to the college. In the era of The Great Stupid, when racial discrimination is treated as “antiracism,” this SCOTUS case is a high profile and significant one, and Future Justice Jackson has a dog in the hunt, as they say. Jackson serves on Harvard’s board of overseers, one of the University’s two governing boards. The board plays “an integral role in the governance of the university.” End of controversy. She’s integrally involved with a party in the case. It is a classic conflict, and cause for recusal. Continue reading

The Biden Supreme Court Pick Ethics Train Wreck

Wow, that was fast. This episode has turned into an ethics train wreck with record speed. Some ethics train wrecks slow down and stop after a few months; other roll on seemingly forever. The Trayvon Martin-George Zimmerman Ethics Train Wreck, which has included directly-related wrecks like the Ferguson Ethics Train Wreck and the George Floyd Ethics Train Wreck, is almost nine years old, and won’t stop until Black Lives Matter lies a-moldering in the grave. The 2016 Presidential Election Ethics Train Wreck is still going strong, with the Jan. 6 riot and the subsequent kangaroo court investigation in the House the latest cars to be hooked up. The Biden Supreme Court Ethics Train Wreck? At this point, where it stops, nobody knows.

It began before it was even certain Biden would get a SCOTUS nomination, when he first promised to name a black woman to the Court. That promise, which he quickly confirmed once Justice Breyer announced his retirement, was unethical “on its face,” as the Court might say. The statement means, and can only mean, that group identification is the primary priority for the President of the United Sates in nominating a crucial individual who will help determine the course of the nation’s laws, justice system, constitutional integrity and culture for decades to come. That function has nothing whatsoever to do with race or gender. Nothing. Being black, white, Native American or Asian does not make an individual more or less qualified for the job, and neither does gender. Biden’s statement literally means that he is placing tribalism and group identification biases above the substantive needs of the nation. That’s unethical. Other Presidents have done this, notably Ronald Reagan and George H.W. Bush. That’s no mitigation.

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The Entertainment Awards Catch-22

They never had any integrity, but before the Great Stupid, they could at least pretend. That was good enough to serve the real purpose of such awards and their televised ceremonies. Now, since they can’t even pretend, the awards have no purpose, and increasingly, no audiences.

The Grammys were the latest televised awards show debacle. That show’s rating hit an all-time low, following similar results for the Golden Globes, the Emmys, the Academy Awards (with this year’s new low on the horizon), and nobody ever watched the Tonys anyway. This result was preordained as soon as the organizations sponsoring and running the various awards competitions, enthusiastically applauded by the woke news media, decided to make honoring minority , especially black, performers a new mission.

By doing so, the organizations were admitting that the awards were never objective assessments of quality in the first place. Of course they weren’t, but the contrary illusion was crucial to the commercial mission of such awards: to promote the product and its creators. Movies that win Oscars used to get a big bump in ticket sales. Songs that win Grammys are downloaded more. The individual artists gain prestige that helps their careers. All of this is dependent on consumers buying the myth that the awards, any of them, are reliable measures of quality, and especially superior quality.

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And Still More From The Unethical World Of Academic Enforced Wokism…

Censored

1. The Georgetown Law Center scandal, the scandal being that the school has fired a professor as racist for saying out loud what the institution has known for decades (that admitting black students with significantly fewer markers of law school success that the rest of the student body means that a disproportionate number of affirmative action admittees end up on the low end of the grading curves–duh...) has been covered by none of the law profs I usually look to for their timely opinions on such matters. Even Prof. Turley, whose blog has been relentless in defending free speech on campus, has been silent. Ann Althouse, so far at least, has preferred to write about such throbbingly important topics as Eddie Izzard’s preferred pronouns. TaxProf Blog, by Pepperdine Law School Dean Paul Caron, and Prof. Jacobson’s Legal Insurrection have also, so far at least, not weighed in on the firing of adjunct Sandra Sellers and the suspension of adjunct David Batson.

What’s going on here? Please, please tell me they are not afraid of this topic. I am especially surprised at Althouse, who is retired, and has little to fear professionally.

2. At the University of South Alabama, three professors were suspended after a six-year-old photos “resurfaced” showing them in “racially insensitive” Halloween costumes. Then-Mitchell College of Business dean Bob Wood was dressed as a Confederate general, professors Alex Sharland and Teresa Weldy were seen posing with a noose and a whip…

Alabama Halloween

As they bounced around social media, the pictures prompted expressions of great harm. “That makes me feel like since other cultures are starting to come here, that they don’t want us here or we’re unwanted because they want it to stay a PWI or a predominately Caucasian institution,” said student Samantha Longmire.   “We have Black students on campus, how do you think that makes them feel? Do you care about your students,” said student Chante Moore.   

Seriously? Seriously? A Halloween costume as a Confederate soldier is a threat, but a vampire costume is fine? These rules don’t make any sense at all, and those rules weren’t even outlined vaguely in 2014. Shaland is dressed like an English judge—how does that have racial implications? He’s a hanging judge, presumably. What does the whip mean? I have no idea—it looks like a cat-o-ninetails to me. They used that on ships, not plantations. There’s one in “H.M.S. Pinafore”! Weldy doesn’t even seem to be in costume. Wood and Sharland, both tenured, apologized. They are cowards, and are enabling the erosion of our rights while supporting the rising totalitarian effort to control thought and expression. Weldy, who is not tenured, has refused to apologize.

Good for her.

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Ethics Verdicts: The Georgetown Law Professor’s Comments Were Careless But Not “Reprehensible,” And The Law Center Dean’s Statement Implying Her Comments Showed “Systemic Racism” Is Reprehensible…And False

This, I would remind you, is why the emphasis of the first Ethics Alarms post on this mess involving my former employer and alma mater was that GULC adjunct professor Sandra Sellers was culpable for the inevitable results of her unintentionally public candor for incompetently broadcasting her private observations over an online conferencing platform. I predicted that she was a goner once the school’s black student organization saw a grandstanding opportunity (and if it wrecks a lawyer’s reputation and career–so what? After all, she’s just another racist white bitch…), and I was right, in part because I know what the Law Center has become in recent years.

I also predicted a groveling apology from Sellers rather than the ringing defense of her observations that might have been helpful in both clarifying her comments and exposing the Law Center’s spectacular embrace of Rationalization #64, “It Isn’t What It is.” Poor, weak, technologically inept–but not wrong!–Sellers sent the Washington Post a copy of her grovel, which could have been drafted by a computer. She apologized for the “hurtful and misdirected remarks,” carefully chosen words indeed. Her remarks were “misdirected” because they were intended only for another professor, not the universe, and they were “hurtful” because they created a student relations crisis for Georgetown—which it has thoroughly botched. Sellers also said in the letter

“I would never do anything to intentionally hurt my students or Georgetown Law and wish I could take back my words. Regardless of my intent, I have done irreparable harm and I am truly sorry for this.”

Well, I give her some credit for declining to say that she didn’t mean what she said, or that what she said was untrue. Some. In essence she apologized for what I had written was the problem with her statement: it was careless to let it be witnessed by people who would—mostly deliberately— misinterpret it. Her carefully composed non-apology was clever, but it doesn’t help. The school’s statement, through GULC second-in-command Dean Trainor, was despicable—unfair and cowardly. It called the episode indicative of “structural issues of racism” (Translation: Sellers is a racist) and “explicit and implicit bias.”

Yes, a dean of a major law school declared on behalf of that law school that accurate observations involving student education are racist, presumably because they don’t advance a convenient but false progressive narrative. He also suspended the law professor Sellers was talking to because he didn’t meet his “bystander responsibility” and confront her over her non-racist statement as if it were racist.

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Introducing The “Technologically Inept Adjunct Professor With Politically Incorrect Opinions Principle”

Adjunct

This Georgetown Law Center adjunct professor is going to be fired, shunned, cancelled and otherwise ruined professionally and personally, and she has no excuses whatsoever.

The Ethics Alarms “Naked Teacher Principle” holds that ” a secondary school teacher or administrator (or other role model for children) who allows pictures of himself or herself to be widely publicized, as on the web, showing the teacher naked or engaging in sexually provocative poses, cannot complain when he or she is dismissed by the school as a result.” This does not mean that such a teacher necessarily should be dismissed, but that the teacher has no basis for claiming to be a victim. The conduct was foolish and irresponsible, and the repercussions predictable.

The newly minted “Technologically Inept Adjunct Professor With Politically Incorrect Opinions Principle” is based on similar calculations. As certain anti-woke statements and positions are getting people fired or canceled daily, with any diversion from the current racial spoils and “diversity” narrative being tarred as “racist,” for a professor at a law school, especially one as tainted by Leftist bias as Georgetown, to express such views over any form of electronic communications is almost grounds for involuntary commitment. Careless and reckless people shouldn’t teach law students. It doesn’t matter whether the statement involved expressed a valid and defensible observation: if it involves a tenet of woke cant and isn’t supportive, then the statement is an invitation to be cancelled. First Amendment? Doesn’t matter. Academic freedom? Irrelevant. Fairness? The Golden Rule? “There but for the grace of God…”? Risible.The third rail is known and recognizable, and you deliberately jumped on it assuming it wasn’t live?

Don’t come whining to me.

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