Supreme Court affirmative action cases

[InfinityMuse]

The laws are based to enact equality in the mixed use spaces. The issue with equality is nationalism. Is the college or president favors foreign interventions then not American is safe is colleges. If equity is implemented then the Chinese students become weapons against the state or nation as a body (people and union). The courts are ignorant of social political powers because jurisprudence is of checks and balances. The court house was contested based on factors of impunity and safe space ideologies. Should the courts rule against the will of the judge and against the will of the jury, the case could result in abstinence of education by the crime of education (good or bad). Should the courts the rule in favor of benefit of doubt then collegiate system could be seen as obsolete by the correspondence of complainant to movement or rule by force.

The consequence is essentially terrorism or interceptor conjunction.

[Mercury]

No doubt that those who have benefitted generationally are all too quick to declare that past racism is deplorable and the best solution is to base current decisions on "objective" criteria of "merit" in a colorblind way. The unspoken reality though is that the "objective" criteria skew heavily to the advantaged which happen to break nicely along racial lines due to left over advantages from numerous past generations of racial discrimination. Thus perpetuating racism through a colorblind technique.

That is a consideration; and a reason I have resisted such a conclusion, but I think the argument fails because it's not Richy Rich who gets displaced by affirmative action. It's a poor white kid, up for the same scholarship program as the poor black kid - who doesn't get in. Which leads back to the idea of colourblind meritocracy and programs to help disadvantaged people with talent achieve their potential - regardless of skin colour.

[Ecurb]

No doubt that those who have benefitted generationally are all too quick to declare that past racism is deplorable and the best solution is to base current decisions on "objective" criteria of "merit" in a colorblind way. The unspoken reality though is that the "objective" criteria skew heavily to the advantaged which happen to break nicely along racial lines due to left over advantages from numerous past generations of racial discrimination. Thus perpetuating racism through a colorblind technique.

That is a consideration; and a reason I have resisted such a conclusion, but I think the argument fails because it's not Richy Rich who gets displaced by affirmative action. It's a poor white kid, up for the same scholarship program as the poor black kid - who doesn't get in. Which leads back to the idea of colourblind meritocracy and programs to help disadvantaged people with talent achieve their potential - regardless of skin colour.

Obviously, affirmative action is a form of racial discrimination. It's reasonable to think this wrong on principle. But the Universities never claimed that their admission standards are objective. Admission relies an a great many subjective factors. Whom should we admit: the "A" student who scored 1450 on his SATs, or the B+ student who scored 1300, but who also starred in high school plays and got his SAG card carrying a spear in two movies? Why should test scores be so significant? Also, suppose we have two identical applicants (based on their scores). One is black, one white. Whom are you going to admit? In the past, it was always the white guy. Why not admit the black guy (or gal)? Instead of creating an insular university promoting the status quo (preferring the white guy), the university is creating a racially diverse environment for its students and faculty, a public image of liberal acceptance, and the message that black students can succeed at Harvard just as well as anyone else. Isn't that worth something? Mightn't black scholars with Harvard PhD.s benefit African American culture, provide examples of black success and brilliance, and, in general, offer society (and Harvard's reputation) benefits far beyond what another Hedge Fund manager might offer?

All parents have heard their children whine, "But that's not fair!!!"

"Life is unfair," is the standard response.

Left unsaid is the corallary, "We must all muddle through the best we can." Harvard doesn't necessarily owe applicants objectivity or "fairness". The motive of the applicants is the glory of acceptance, and the advantages of a Harvard education and degree. But Harvard has other motives. It wants to improve it's image, develop famous scholars, and benefit both its alumni and society at large. Perhaps by giving a slight advantage to black applicants, Harvard believes it is working toward these goals, and wishes it could, like parents everywhere, respond to complaints with, "Life is unfair,"

[GE Morton]

P.S. I'm not sure if any Supreme Court decisions would affect private universities, or only state univerisities. Does anyone know?

The Court consolidated two cases, one involving U of North Carolina, the other Harvard. The legal issues are somewhat different in the two cases. Being a public school, UNC is subject to the 14th Amendment's "equal protection of the law" clause, AND to the various civil rights acts. Harvard, being private, is subject only to the latter.

https://www.nytimes.com/2022/10/31/us/s ... ction.html

[Ecurb]

That makes sense, GE. It seems reasonable that public Univeristies are subject to different laws and restrictions from private ones. Thanks (although I can't read the link, because I don't subscribe to the NYT). I don't really know the legal issues; my posts have been based on what I see as the moral issues instead.

[GE Morton]

Huh? It would also be very difficult to find an example of the founding Fathers opposing affirmative action. The question is whether the State has the right to PREVENT universities, based on their own private policies, from considering an admission policy that includes affirmative actions.

That issue is not before the Court. Nine states, including California and Washington, already ban affirmative action in their state schools. No state bans it for private schools. The question before the Court is whether states may allow, or require, affirmative action, not whether they may prohibit it.

The question is about the limits of the State's right; it is important because the Supremes have repeatedly found it unconstitutional for States to legalize (for example) segregated bathrooms, segregated public schools, and businesses that refuse to serve people whose color they disapprove of. So there is precedent for the Supremes acting on the side of racial equality (which, of course, would not support affirmative action).

Yes; all of those are obvious violations of the equal protection clause.

So the question before the Justices is whether some forms of racial discrimination (like affirmative action) are "justified". The constitution has little to do with it.

If the Court takes that approach the justices are not doing their jobs, which is to interpret the Constitution and federal laws. What they need to do in these cases is re-visit the decisions reached in a couple earlier cases finding that the goal of "diversity" permits violations of the equal protection clause. Those decisions were as spurious, constitutionally speaking, as Roe v. Wade; indeed they had even less constitutional plausibility.

The situation is different for private schools, however. The equal protection clause does not apply to them; the question there is, Do the various federal civil rights laws prohibit affirmative action by private schools? If they do, is that not a pre-emption of states' rights? If they encourage or require it, are those (federal) laws themselves constitutional?

The optimum resolution, from a libertarian viewpoint, would be that the Court strictly apply the equal protection clause to public schools, and reject the "diversity" exception. But it would leave private schools alone to adopt any admissions criteria they wish.

[Mercury]

"Life is unfair,"

Ecrub,

I'm responding to say I'm not responding to your post. You make an impassioned case for your position - and I respect that. I don't want to argue against it; not because I entirely agree, or entirely disagree, but because in arguing for my view relative to yours - in this forum, it feels like I'm being polarised. I read your post, I've read some others, listened to the court debate on youtube - and I still don't know - and I don't want a position I argued myself into because argument is the format of this forum. So thank you for your views, but I'm going to sit back a while - and see what other people have to say.

[LuckyR]

No doubt that those who have benefitted generationally are all too quick to declare that past racism is deplorable and the best solution is to base current decisions on "objective" criteria of "merit" in a colorblind way. The unspoken reality though is that the "objective" criteria skew heavily to the advantaged which happen to break nicely along racial lines due to left over advantages from numerous past generations of racial discrimination. Thus perpetuating racism through a colorblind technique.

That is a consideration; and a reason I have resisted such a conclusion, but I think the argument fails because it's not Richy Rich who gets displaced by affirmative action. It's a poor white kid, up for the same scholarship program as the poor black kid - who doesn't get in. Which leads back to the idea of colourblind meritocracy and programs to help disadvantaged people with talent achieve their potential - regardless of skin colour.

Obviously, affirmative action is a form of racial discrimination. It's reasonable to think this wrong on principle. But the Universities never claimed that their admission standards are objective. Admission relies an a great many subjective factors. Whom should we admit: the "A" student who scored 1450 on his SATs, or the B+ student who scored 1300, but who also starred in high school plays and got his SAG card carrying a spear in two movies? Why should test scores be so significant? Also, suppose we have two identical applicants (based on their scores). One is black, one white. Whom are you going to admit? In the past, it was always the white guy. Why not admit the black guy (or gal)? Instead of creating an insular university promoting the status quo (preferring the white guy), the university is creating a racially diverse environment for its students and faculty, a public image of liberal acceptance, and the message that black students can succeed at Harvard just as well as anyone else. Isn't that worth something? Mightn't black scholars with Harvard PhD.s benefit African American culture, provide examples of black success and brilliance, and, in general, offer society (and Harvard's reputation) benefits far beyond what another Hedge Fund manager might offer?

All parents have heard their children whine, "But that's not fair!!!"

"Life is unfair," is the standard response.

Left unsaid is the corallary, "We must all muddle through the best we can." Harvard doesn't necessarily owe applicants objectivity or "fairness". The motive of the applicants is the glory of acceptance, and the advantages of a Harvard education and degree. But Harvard has other motives. It wants to improve it's image, develop famous scholars, and benefit both its alumni and society at large. Perhaps by giving a slight advantage to black applicants, Harvard believes it is working toward these goals, and wishes it could, like parents everywhere, respond to complaints with, "Life is unfair,"

Moving from the student perspective (in my first post) to the University perspective, which you address, there are several errors of understanding going on. The first is that if an elite school has 100 positions and needs to offer 150 acceptance letters to fill the class, that the top 150 applicants are "qualified" and starting at the 151st they are "unqualified". Fact is there are likely thousands of qualified applicants. So making up a freshman class with a mix of test scores and GPAs is perfectly logical and creates the student body that the University is seeking, for example a certain number of foreign students, a certain number of student athletes etc. A certain number of "legacy" students also btw.

Bottom line there aren't enough elite school slots to go around so a majority of truly qualified applicants will get rejected, regardless. So being rejected is the norm, not an unusual circumstance that automatically deserves explanation.

[ernestm]

I dont know what cuntry you live in, but in the I live in, the authority of the supreme court is constitutionally defined as the right to interpret the founding fathers in how to remove obstructions to constitutional rights. Thats what the constitution says. Its not allowed to decide what it thinks its right by some arbitrary standard of morality as you are insisting is true. It has not right to decide that. All it can do is interpret the founding fathers intent. The supreme court is not your santa claus to smile benignly on your opinion when you think it should. It has no interest in your opinion at all.

I live in the U.S., and that's why I know you are wrong. The Supremes are charged with interpreting a variety of laws -- not as to whether they are "constitutional", but as to whether they are just and fair, and what they actually mean. I remember one case where some Southern state had a mandatory sentencing law which required a 25 year prison sentence for anyone using a firearm during the commission of a drug related felony. The felons serving this sentence appealed, and the case went to the Supremes. The facts of the case were: the convicted felons had traded firearms for drugs. Does this constitute "using a firearm during the commission of a drug related felony"? Scalia said no. That might have been the literalist interpretation of the law, but it was not the intent of the legislature. "Suppose," he wrote (paraphrased from memory, "Someone had scratched his head with a pistol while driving to purchase drugs. Is that the "use" intended by the legislaure?"

In addition, the Supreme Court generally pays attention to legal precedent, as well as to what is actually written in the Constitution. Here's the Encyclopedia Britannica description of the duties of the Court: https://www.britannica.com/topic/Suprem ... -and-power

The "use' intended by the legislature in your cited case is defined by the Heller decision, clause 1a to 1f. That determined what uses of firearms cannot be obstructed due to Justice Scalia's interpretation the Founding Father's original intended meaning of the 2nd Amendment, which was held, 5:4.

[ernestm]

Huh? It would also be very difficult to find an example of the founding Fathers opposing affirmative action. The question is whether the State has the right to PREVENT universities, based on their own private policies, from considering an admission policy that includes affirmative actions.

That issue is not before the Court. Nine states, including California and Washington, already ban affirmative action in their state schools. No state bans it for private schools. The question before the Court is whether states may allow, or require, affirmative action, not whether they may prohibit it.

The question is about the limits of the State's right; it is important because the Supremes have repeatedly found it unconstitutional for States to legalize (for example) segregated bathrooms, segregated public schools, and businesses that refuse to serve people whose color they disapprove of. So there is precedent for the Supremes acting on the side of racial equality (which, of course, would not support affirmative action).

Yes; all of those are obvious violations of the equal protection clause.

So the question before the Justices is whether some forms of racial discrimination (like affirmative action) are "justified". The constitution has little to do with it.

If the Court takes that approach the justices are not doing their jobs, which is to interpret the Constitution and federal laws. What they need to do in these cases is re-visit the decisions reached in a couple earlier cases finding that the goal of "diversity" permits violations of the equal protection clause. Those decisions were as spurious, constitutionally speaking, as Roe v. Wade; indeed they had even less constitutional plausibility.

The situation is different for private schools, however. The equal protection clause does not apply to them; the question there is, Do the various federal civil rights laws prohibit affirmative action by private schools? If they do, is that not a pre-emption of states' rights? If they encourage or require it, are those (federal) laws themselves constitutional?

The optimum resolution, from a libertarian viewpoint, would be that the Court strictly apply the equal protection clause to public schools, and reject the "diversity" exception. But it would leave private schools alone to adopt any admissions criteria they wish.

That's a very good statement. thank you very much )

[Ecurb]

The "use' intended by the legislature in your cited case is defined by the Heller decision, clause 1a to 1f. That determined what uses of firearms cannot be obstructed due to Justice Scalia's interpretation the Founding Father's original intended meaning of the 2nd Amendment, which was held, 5:4.

I don't have the book any more, but I got the story from John Capanzano's "Serving the Word: Literalism in America from the Pulpit to the Bench" My memory is that the Second Amendment had nothing to do with the case. Instead, the issue was what is meant by a law mandating a sentence for someone who "USES" a firearm in the commission of a drug related felony. Literalists might insist that any "use" satisfies the conditions. To paraphrase Scalia, they might want to sentence someone to 25 years hard labor if he stood on a box of rifles to reach the drugs he was selling.

Scalia (in this case) was more of an intentionlist (aka purposivist). What, he asked, did the legislature mean when it wrote "uses a firearm". Did they, perchance, mean using it for it's accustomed purpose, which is to shoot or threaten? Does bartering firearms qualify? Scalia said, "no."

I don't remember why the Supremes got involved in a case adjudicated in Louisiana (I think) and concerning Louisiana law.

[ernestm]

The "use' intended by the legislature in your cited case is defined by the Heller decision, clause 1a to 1f. That determined what uses of firearms cannot be obstructed due to Justice Scalia's interpretation the Founding Father's original intended meaning of the 2nd Amendment, which was held, 5:4.

I don't have the book any more, but I got the story from John Capanzano's "Serving the Word: Literalism in America from the Pulpit to the Bench" My memory is that the Second Amendment had nothing to do with the case. Instead, the issue was what is meant by a law mandating a sentence for someone who "USES" a firearm in the commission of a drug related felony. Literalists might insist that any "use" satisfies the conditions. To paraphrase Scalia, they might want to sentence someone to 25 years hard labor if he stood on a box of rifles to reach the drugs he was selling.

Scalia (in this case) was more of an intentionlist (aka purposivist). What, he asked, did the legislature mean when it wrote "uses a firearm". Did they, perchance, mean using it for it's accustomed purpose, which is to shoot or threaten? Does bartering firearms qualify? Scalia said, "no."

I don't remember why the Supremes got involved in a case adjudicated in Louisiana (I think) and concerning Louisiana law.

What the argument is about is whether people are keeping or bearing arms when they wave them around. If they are bearing arms, they are guilty. If they are merely keeping them, they are innocent.

If you actually want a real argument, you would have to uphold living interpretation over originalism. According to current legal doctrine, originalism is the correct interpretation of the 14th amendment. So one would properly say the Supreme Court's authority is derived from the Constitution, rather than is Constituional. But the problem is, the living interpretation turns the Supreme Court into a whimsical fairy godmother, which is entirely against the prevailing doctrine in philosophy of law, legal positivism. So you have a pretty tough road ahead of you if that's what you want to argue.

[GE Morton]

Here is a decent summary of the Court's option in these current cases:

https://reason.com/volokh/2022/10/31/th ... tion-cases

[ernestm]

Here is a decent summary of the Court's option in these current cases:

https://reason.com/volokh/2022/10/31/th ... tion-cases

Well that's fascinating to me. It'll take me a little time to digest it in entirety. My first question is, under what definition of justice does the public's level of approval for the SoC define the opinions of 'wavering justices'? It is based on Rousseau's social contract, or truth by consensus, or what?

[Ecurb]

What the argument is about is whether people are keeping or bearing arms when they wave them around. If they are bearing arms, they are guilty. If they are merely keeping them, they are innocent.

If you actually want a real argument, you would have to uphold living interpretation over originalism. According to current legal doctrine, originalism is the correct interpretation of the 14th amendment. So one would properly say the Supreme Court's authority is derived from the Constitution, rather than is Constituional. But the problem is, the living interpretation turns the Supreme Court into a whimsical fairy godmother, which is entirely against the prevailing doctrine in philosophy of law, legal positivism. So you have a pretty tough road ahead of you if that's what you want to argue.

That's not my memory of the case I was citing (I don't thinkit had anything to do with the 2nd or 14th amendments), but since I read the book twenty years ago, and since a 5 minute google didn't reveal more information, I can't back up my claim (also, it doesn't much matter).