Damned If You Do, Damned If You Don’t…

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An Oregon woman, Kristine Johnson, is suing the Church of Jesus Christ of Latter-day Saints (that’s the Mormon church) for $9.54 million because Timothy Samuel Johnson, her husband, confessed to church leaders that he had sexually molested a child, and he was reported to law enforcement authorities, leading to his arrest, conviction and imprisonment. The lawsuit alleges that local church leaders breached confidentiality and the “priest-penitent privilege. Timothy Johnson had confessed to  clergy that he had repeated sexual contact with a minor. Local clergy’s actions “totally violated church policy,” says the woman’s lawyers. “It’s been devastating on the family,” plaintiff’s counsel told the press. “They lost a husband and a father, and local girls lost a reliable source of gifts, friendship, and excitement.”

OK, I’m kidding about the part after “father.” Continue reading

Morning Ethics Warm-Up In Vegas, Afternoon Warm-Up In Alexandria, 11/22/2019

Walter Cronkite, Nov. 22, 1963, relaying the shocking news that changed…everything.

Good whatever it is where you are!

1. President Kennedy was assassinated on this date in 1963. He had been President exactly as long as Donald Trump has, and by most measures, President Trump has accomplished more,despite the fact that JFK really did have “the best people.” You might have to go back to George Washington to find a more qualified Cabinet.  By this point in his term, JFK, we now know, had already committed impeachable “high crimes and misdemeanors” notably through his reckless sexual escapades with an Israeli spy and a mob moll, allowing J. Edgar Hoover (speaking of Deep State villains) to blackmail his administration, and perhaps others. Yet the vast majority of the public regards Kennedy as a great President, which shows what a pretty face, an inspiring speaking style, a complicit news media, and getting shot will do for a President’s reputation.

I’d ponder what this nation would be like if Lee Harvey Oswald had missed that beautiful day in Dallas, but that way madness lies, as King Lear like to say.

2.  How many botches can Joe Biden’s campaign take?  The Biden campaign sent out an email about Joe’s performance in the Democratic debate several hours before ithe debate had started. “Did I make you proud?” it began. (I can’t imagine another typical stumble-fest from Biden would make anyone proud, but never mind)

“I’m leaving the fifth Democratic debate now,” It continued. “I hope I made you proud out there and I hope I made it clear to the world why our campaign is so important.”

I wrote about something like this during the 2012 debates, when USA Today published an analysis by a conservative and a liberal pundit over the previous night’s Obama-Romney debate that was obviously written before the debate took place. These things are lies. What should the public take away from learning about them? They should learn that the people involved will deceive them even when they don’t have to.

“You might have just gotten an email from Joe about just getting off of the debate stage,” the rapidly deployed statement from the embarrassed campaign said.  “That’s our bad, team. We know Joe is going to make us proud tonight. We were just so excited for it that we accidentally hit send too soon,” they added.

Huh? If the message was written before the debate but pretended that it was written after the debate, it is a lie regardless of when it is sent. Continue reading

The Ruling In The Harvard Asian Discrimination Case: So What WAS “The Point”?

In response to U.S. District Judge Allison D. Burroughs’ ruling this week that Harvard University does not discriminate against Asian Americans in undergraduate admissions, two commentators issued reactions with almost themes: the ruling missed the point. In the New York Times, law professor Melissa Murray wrote that the opinion missed the point by being…

…focused on diversity as the sole grounds on which the use of race in admissions may be justified. As Judge Burroughs noted in her ruling, diversity-centered admissions policies can “enhance the education of students of all races and backgrounds, to prepare them to assume leadership roles in the increasingly pluralistic society into which they will graduate,” “broaden the perspectives of teachers” and “expand the reach of the curriculum and the range of scholarly interests.” Her words echo the standard refrains that have been deployed to defend affirmative action since Justice Lewis Powell’s opinion in University of California v. Bakke (1978). Justice Powell famously extolled the virtues of the “Harvard Plan,” which recognized that a “farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer.” The problem, of course, is that thinking about diversity in terms of what beneficiaries might contribute makes the benefits of affirmative action contingent and conditional — worthy only because its beneficiaries serve the broader needs of institutions and those who are assumed to belong.

To the contrary, Murray believes that Harvard’s race preferences out to be justified as permanent reparations, though she never uses those exact words.  (Hmmmm.…I wonder if she’s black? Let’s see…why yes, she is!):

Those who fought for affirmative action expected institutions to maintain policies that ensured continued representation of those who had long been excluded. But at least in the courts, these convictions have been largely jettisoned.

That’s because they are unethical, illegal and unconstitutional.

The momentary victory for Harvard, which was correctly accused of discriminating against Asian-Americans in admissions in order to further affirmative action goals, was the result of an ideological rather than a legal analysis. I give the judge credit for being open about his bias: how else could one interpret his reasoning? From the Washington Post:

While Harvard’s “admissions process may be imperfect,” Burroughs wrote, the judge concluded that statistical disparities among racial groups of applicants “are not the result of any racial animus or conscious prejudice.”

The law does not require “racial animus or conscious prejudice” to make  racial discrimination illegal. Discrimination on the basis of race is unfair, unjust, illegal and wrong. The judge doesn’t address that fact; he just explains why Harvard’s discrimination is the good kind, writing,  “The use of race benefits certain racial and ethnic groups that would otherwise be underrepresented at Harvard and is therefore neither an illegitimate use of race or reflective of racial prejudice.”

What does “under-represented” mean? This is a tell: Judge Burroughs is a disciple of the Left’s edict that  institutions, workplaces, benfits and distinctions are inherently suspect or harmful if they don’t closely match demographic divisions within the public in general. This essentially un-American myth requires the use of quotas while disguising their intent and function.

Affirmative action has always been an example of policy hypocrisy, engaging in present discrimination in order to combat the effects of past discrimination. It was justified, at best, as a temporary breach of core principles in pursuit of a theoretical remedy to a unique problem.

Another “the opinion missed the point” article had a more useful, if also flawed,  analysis than the law professor’s “We should keep discriminating against whites and Asians forever because of slavery and Jim Crow” argument. Richard Ford makes the case in “The Harvard Ruling Misses the Point” that the entire debate is taking place within an absurdity. Elite institutions like Harvard exist to bestow the credential of being  certified “elite,” a member of the deserving American upper class. “Democratizing” the anointment process by artificially using factors that have nothing to do with merit or achievement to bestow elitism is self-contradictory: once it becomes obvious that getting admitted to Harvard signifies nothing substantive, then Harvard’s ability to sanctify its graduates vanishes, or should.

It should. Harvard’s degree always was something of a fraud in this respect. Ford correctly observes,

The unstated assumption that folds affirmative action into a general critique of elite admissions is that acceptance should be based exclusively on individual merit (and that merit, in turn, should be measured by grades and test scores). Indeed, opponents of affirmative action often speak as if it is a departure from an otherwise even-handed and admirable meritocracy. But the Harvard case and the bribery scandal both expose—in high relief, if not for the first time—the extent to which non-racial (and hence legally unproblematic) admissions preferences dwarf those associated with race. Athletes, legacy applicants, and those otherwise likely to help universities secure large donations enjoy higher admission rates than members of underrepresented racial groups. Affirmative action is one of the more modest of many departures from numerical indicia of merit.

Continue reading

Morning Ethics Warm-Up, December 19, 2018: Facebook’s Lies, Hillary’s Letter, Harvard’s Defenders, And Kavanaugh’s Victory

Good Morning!

1. Open Forum today! As soon as this post is up, I’ll open a forum for readers here to raise their own suggestions for ethics topics and to offer their commentary without me getting in the way. The last one was a spectacular success, attracting over a hundred comments, generating many fascinating threads, and producing three Comments of the Day so far. Just keep the topics on ethics, don’t get distracted by tangents and bickering, and keep it civil.

The immediate motivation for today’s forum is that I have to prepare for and deliver an annual end of year ethics CLE seminar at the D.C. bar. If you’re in the vicinity and need the credits, or just want a lively ethics workout, come on by and say hello. Here are the details:

Date: December 19, 2018

Event start time :1:30 PMEvent end time:4:45 PM

Venue:D.C. Bar: 901 4th ST NW, Washington, DC 20001-2776

Credit: 3.0 Ethics Credit Hours, including 3 hours of professionalism for those states with such requirement.

Description: Widespread discord in our current culture places unusual stress on professional ethics, and unfortunately, the legal profession is not immune. The past year saw many legal professionals, including famous names in the law, make questionable decisions and breach legal ethics standards, providing both cautionary tales and fodder for analysis. This challenging and interactive class will explore important developments and looming perils that every lawyer should be ready to face.

Topics include:

• Direct adversity vs. “general adversity,” and whether it matters
• Sexual harassment as a legal ethics problem, and the profession’s vulnerability to “The King’s Pass”
• Defying a client for the client’s own good
• Fees, referrals and gaming the rules for fun and profit
• Professional responsibility vs. legal ethics
• The increasing threat to law firm independence and integrity
• The technology ethics earthquake

..and more!

Faculty: Jack Marshall, Pro Ethics Ltd.
Fee: $89 D.C. Bar Communities Members; $99 D.C. Bar Members; $109 Government Attorneys; $129 Others

2. Meanwhile, here are Facebook’s “standards”… As Ethics Alarms posts continue to be blocked on Facebook in various ways, including by “community standards” that for some reason reject the ethics of “Miracle on 34th Street,” the social media behemoth’s own standards are coming into focus: From CNBC: Continue reading

How Can Anyone Honestly Defend Harvard’s Discriminatory Admissions Practices? Especially Harvard?

The federal trial that began last week in  Students for Fair Admissions v. Harvard, featuring  America’s oldest college being accused of discriminating against Asian-American applicants should, if there is justice in the world, both finally kill the lingering bigotry of college affirmative action policies and expose the U.S.’s most prestigious educational institution, and the ideological philosophy that has captured it, as the hypocritical and fraudulent entity that it is.  Does Harvard discriminate on the basis of race? Why yes, it does. There is no valid argument that it does not. Evidence shows that the college ties itself into logical knots concocting ways to justify not admitting Asian-American applicant who would sail into freshman classes were not their race used to undermine their candidacy. The plaintiffs cite reports that Harvard itself conducted  in 2013. The reports, by Harvard’s Office of Institutional Research, found that being Asian-American was negatively associated with being admitted. Harvard claims that it must consider race in order to have a “diverse” student body, which is important, it says, to the quality of education one can obtain there. “Diversity,” however is and has always been a rationalization for discrimination. No matter how affirmative action is framed, the fact is that it is a zero-sum game: for each individual whose race benefits their quest for admission, there is another individual whose race is used as a justification to reject him or her. There is no way of getting around this inconvenient fact, yet Harvard and other elite institutions persist in denying it.  Continue reading

Unethical Quote Of The Month: Outgoing Harvard President Drew Faust

…unless your racial origins would cause an imbalance in our carefully constructed palette of backgrounds, abilities and hues…

Asian-American groups  filed a federal lawsuit challenging Harvard University’s affirmative action policies as discriminatory, and the Justice Department backs of plaintiffs who say the university is discriminating against Asian-American applicants. (I wrote about the lawsuit here.) Of course they are discriminatory. In its quest for “diversity,” Harvard and other schools have penalized Asian-Americans, who confound Charles Murray-haters and racial-privilege mongers by being disproportionately excellent in academics. On a level playing field, in a purely merit-based admission system, they would dominate elite institutions, with numbers far beyond what demographics alone would predict. Can’t have that!  (This the leftist reaction, and they run U.S. education. My reaction: what an inspiring American success story!) Thus Harvard and other schools have used de facto quotas to reject Asian Americans who would have been admitted easily if they were a different color.

Outgoing Harvard President Drew Faust, a feminist proto-totalitarian who has shown an eagerness to stomp on basic human rights like speech, due process and association during her disastrous tenure,  sent the campus a message this week attacking the law suit. Here it is:

Dear Members of the Harvard Community,

In the weeks and months ahead, a lawsuit aimed to compromise Harvard’s ability to compose a diverse student body will move forward in the courts and in the media. As the case proceeds, an organization called Students for Fair Admissions—formed in part to oppose Harvard’s commitment to diversity—will seek to paint an unfamiliar and inaccurate image of our community and our admissions processes, including by raising allegations of discrimination against Asian-American applicants to Harvard College. These claims will rely on misleading, selectively presented data taken out of context.  Their intent is to question the integrity of the undergraduate admissions process and to advance a divisive agenda. Please see here for more information about the case.

Year after year, Harvard brings together a community that is the most varied and diverse that any of us is likely ever to encounter. Harvard students benefit from working and living alongside people of different backgrounds, experiences, and perspectives as they prepare for the complex world that awaits them and their considerable talents.

I have affirmed in the past, and do so again today, that Harvard will vigorously defend its longstanding values and the processes by which it seeks to create a diverse educational community. We will stand behind an approach that has been held up as legal and fair by the Supreme Court, one that relies on broad and extensive outreach to exceptional students in order to attract excellence from all backgrounds.

As this case generates widespread attention and comment, Harvard will react swiftly and thoughtfully to defend diversity as the source of our strength and our excellence—and to affirm the integrity of our admissions process. A diverse student body enables us to enrich, to educate, and to challenge one another. As a university community, we are bound across differences by a shared commitment to learning, to pursuing truth, and to embracing the rigor and respect of argument and evidence. We never give up on the promise of a world made better by an assumption revisited, an understanding expanded, or a truth questioned—again and again and again.

Last month, I presided over our Commencement Exercises for a final time and reveled in the accomplishments of our graduates and alumni, and in the joy and pride of the faculty who educated them, the staff who enabled their manifold successes, and the family members who helped nurture them and their aspirations. Tercentenary Theatre was filled with individuals from the widest range of backgrounds and life experiences. It was a powerful reminder that the heart of this extraordinary institution is its people.

Now, we have an opportunity to stand together and to defend the ideals and the people that make our community so extraordinary. I am committed to ensuring that veritas will prevail.

Sincerely,

Drew Faust

Such transparent deceit is seldom trumpeted so loudly. Continue reading

Morning Ethics Warm-Up, 6/8/18: Breaking Radio Silence

Good Morning!

Adventures in Woburn, Mass.:

1. The Event. I guess I should have assumed that some commenting here would go on yesterday about the unpleasantness involving an ex-participant here, while that dispute was causing me to lose all of yesterday between travel and court. (I alomot tried to put up a post late last night, but was too fried.) I have little to say on the matter, which is still being considered, except that I did learn some surprising things, such as that

  • …the weakness of the concept of “lawyer-in-all-but-degree” tends to be exposed in court;
  • …being banned from an ethics website is an existential catastrophe, and actionable, according to “lawyers-in-all-but degree”;
  • …having a great poker face is an essential talent for a judge:
  • ….in  lawyer-in-all-but-degree schools, they apparently teach that the position that “judicial misconduct” and “judicial ethics” are essentially the same topic is ridiculous and libelous, and
  • ….playing the part of Van Johnson in “The Caine Mutiny” just isn’t as much fun in real life as it seems to be in the movie, if you get my drift. It’s kind of embarrassing and sad.

2. A airport encounter:  In the airport on the way to Boston and waiting for my flight in an early morning mob, I was anxiously wandering through the crowd when I heard a quiet male vice say, “Nice tie!” It was not obvious who had spoken, but I decided it had to be a young African American airport employee who was helping a traveler in a wheel chair. “Did you just say ‘nice tie’?” I asked him, though he was not looking at me. Then he lit up, said that he had, and got into a long conversation with me about ties. He is a tie aficionado. He has photos of his ties on his cell phone! He loves talking about ties! And thus I connected with a fellow human being in a chance encounter, when he took the step of breaking through the silence and mutual disinterest that increasingly marks the daily interactions of Americans, even neighbors. I also ensured that he would not feel like I was ignoring his existence when he had taken the risk of an unsolicited overture to interact. [Unlike the female jogger I write about here.] Contrary to some of the comments that I received then, I don’t think anything about the chance encounter yesterday should have been different if the participants had been different ages, races, ages, or stations in life. Continue reading