racial preferences

Discrimination Against Asian American Students Is Discrimination Against Asian American Students: Why Is This Even Debatable?

/ Jack Marshall / 17 Comments

The Trump administration has  fingered  Yale as discriminating against Asian-American and white applicants, just as an Asian-American student group had made the same claim in lawsuits against Harvard, the University of North Carolina at Chapel Hill, and a recently filed case against the University of Texas at Austin. A federal judge ruled in Harvard’s favor last year, but i do not believe the decision will stand up on appeal, since it is dishonest and illogical. The Trump Administration is supporting the plaintiffs as it should…as everyone should.

I wrote about the Harvard decision here.  As you would expect, the analysis differs not at all from the ethics verdict regarding Yale’s discrimination, which is similarly indefensible. Also as you might expect, the “it isn’t what it is” rationalization (#64!) is rampant while the usual suspects try to defend it now, when the Black Lives Matter mob is demanding discrimination in favor of African Americans in all things—hiring, promotions, ring, college admissions, arrests, prosecutions, casting, honors, running for Vice-President—as if that is anything but racism, flat-out.

The New York Times–of course–is and will be embarking on a course of trying to obscure the obvious right and wrongs of the situation, as well as engaging in some ethics  jujitsu to make out the Trump Administration and anyone who thinks that no discrimination on the basis of race means no discrimination on the basis of race  as racist villains.  In this article, for example, the Times attempts or enables several dishonest arguments to discredit what should be self-evident, including… Continue reading →

Morning Ethics Warm-Up, 6/19/2020: “Juneteenth” Edition

/ Jack Marshall / 17 Comments

Good morning!

1. About “Juneteenth”: I confess: I had never heard of Juneteenth before this year, or at least never took note of it or what the day signifies. I am certain that I never heard the term while I was living in Massachusetts. It would have helped, in my case, if the unofficial holiday (except in Texas, where the event commemorated actually occurred, the freeing of the last slaves in America, and it is a state holiday) had a label that didn’t remind me of so many Madison Avenue gimmick labels and fad word mash-ups like “frenemy” or “momtrepreneur.” “Juneteenth” sounds to me like a summer music festival.

The end of slavery is certainly a legitimate subject for a new paid Federal holiday (as well as many others). Getting the holiday established as part of the George Floyd Freakout white guilting strategy cheapens it, I think, placing the holiday in the same pandering package with HBO Max pulling “Gone  With The Wind” or the University of Florida  banning the “Gator Bait” cheer. As with so much else going on, I am concerned that this will exacerbate rather than ameliorate racial tensions, with an official nation-wide “Juneteeth” having the effect of making July 4th a “white” holiday.

2. Deceitful withdrawal of the decade? Senator Amy Klobuchar, whose prospects for being named Joe Biden’s running mate vanished as soon as it was publicized that she was responsible for Minneapolis cop Derek Chauvin not being prosecuted for earlier claims of police misconduct, grandly announced that she had called Biden and withdrawn her name from consideration, an amusing variation on “You can’t fire me, I quit!  “America must seize on the moment and I truly believe — as I actually told the VP last night when I called him — that I think this is a moment to put a woman of color on that ticket,” Klobuchar told MSNBC’s Lawrence O’Donnell last night. “And there are so many incredible, qualified women. But if you wanna heal this nation right now, my party yes, but our nation, this is a helluva way to do it.”

No, choosing a Vice-President purely on the basis of gender and color is not a “helluva way” to run a country, but that’s progressivism and the Democratic Party in 2020: group identity matters, actual skill and qualifications don’t. (And if there are so many “incredible, qualified women, why isn’t Biden considering any of them?) Ann Althouse writes, amusingly,

So what I hear in her effort at a high-minded statement is an undercutting of the other women who are in the running. First, Elizabeth Warren — who is not a woman of color except in her memory of younger days when family lore and a desire to identify were enough. Why step on her chances, Amy? Second, all the various black women who are in the running. Amy is ensuring that when one of them is picked, everyone will believe they were picked because of their race.

Because whoever it is will have been picked because of her race and gender! Klobuchar isn’t signaling anything that everyone paying attention hadn’t figured out months ago. As for Warren, I have never believed that the Democrats would be so foolish as to have two over-70 politicians on the ticket. Continue reading →

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

/ Jack Marshall / 7 Comments

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

/ Jack Marshall / 13 Comments

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?

/ Jack Marshall / 34 Comments

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

/ Jack Marshall / 13 Comments

…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 →

Asian-American Students Take Aim At What’s Unethical About Affirmative Action

/ Jack Marshall / 79 Comments

Good.

The ethics problem with affirmative action is that its utilitarian trade-off is undeniably unfair and hypocritical. In order to admit African-American students whose test scores and grades would not normally allow them to be admitted to elite institutions, racial preference is used to justify not admitting white students whose credentials would otherwise qualify them for entry. Diversity justifies racial discrimination.

Asian-Americans have long been an embarrassment to this theory. Even though it is another minority group that was the target of institutional and social prejudice in this country, and despite added disadvantages of language and culture, Asian Americans as a group have better test scores and grades than the supposedly privileged whites. Not only does this fact call into question some assumed explanations for the consistently lagging performance of African-Americans, it also threatens diversity policies by raising the possibility of a student body disproportionately Asian American, with whites students being squeezed out at one end by  superior Asian-Americans  and on the other by Affirmative Action-assisted blacks.

How have universities avoided this problem thus far? They have avoided it by applying quotas to both Asian-Americans and African-Americans. The problem is that the quotas on Asian Americans limit their numbers, regardless of their qualifications. Continue reading →

Ethics Quote of the Week

/ Jack Marshall / 10 Comments

“One of my students this year has a vaguely Hispanic name but is literally the whitest girl you’ve ever met. Her mother straight out asked, ‘If we mark she’s Latino on the application, is that something that they would ever challenge?’ I told her honestly my best guess, which was no. And, if early admissions are any indication, it seemed to work.”

—-A  guidance counselor (and former Ivy League admission officer) at a private school in the South, quoted by Kathleen Kingsbury in her report for The Daily Beast on dubious college admission tactics.

This, of course, is completely unethical for both the student and the counselor, who is exactly like a tax attorney or accountant who lets a client know that his fraudulent return will almost certainly not be audited by the I.R.S. Both of those professionals violate their ethics codes by aiding and abetting such conduct, and the quoted counselor is just as bad.

What should the counselor have said? Continue reading →