- Oops! “Tulane sophomore unknowingly named as plaintiff in lawsuit over college bribery scandal” [John Simerman, New Orleans Advocate] “Admissions scandal class action is ‘fascinating’ but likely doomed – experts” [Alison Frankel, Reuters] Plus advice from Ken at Popehat;
- Some problems with the idea of a sweeping presidential order to decree free speech on campus — and a promising if more modest step the White House could take instead [Donald Downs, Cato] Two more views on how universities can “fend off outside intervention and, more importantly, be true to their own mission… [by] nurturing a better free speech culture” [Keith Whittington, parts one and two; John McGinnis]
- “‘If racial preference [in college admissions] is unjust, then it doesn’t magically become just because people notice some other injustice that has different beneficiaries,’ Olson said. ‘Two things can be unjust at the same time, and two injustices do not add up to one justice.'” [John Blake, CNN, quoting me on the argument that the admissions scandal somehow proves preference advocates’ case]
- Harvard lawprof and residential dean Ronald Sullivan under fire for defending unpopular figures facing MeToo charges
[Randall Kennedy, Chronicle of Higher Education; Conor Friedersdorf (quoting HLS prof Janet Halley: “Finally, the ‘climate survey’ technique is a dangerous precedent as a matter of employment rights and as a threat to academic freedom. It’s a thinly veiled version of the heckler’s veto.”)]
- The Snuggle is real: very long list of demands by Sarah Lawrence students occupying campus building includes consistent access to detergent and fabric softener [Sarah Lawrence Phoenix; Pamela Paresky, Psychology Today] Rather more seriously, the students demand the college reconsider the tenure status of a professor who published a mildly conservative op-ed in the NYT [Colleen Flaherty, Inside Higher Ed]
- Even if occasionally subverted by dishonest actors, standardized tests remain the gold standard among transparent, objective ways to improve the accuracy of college success prediction [Jenna A. Robinson, Martin Center]
- “It’s like open carry, but for Coppertone”: lawmakers in Washington move to “allow students to use sunscreen at school without a doctor’s note.” [Lenore Skenazy, Free-Range Kids]
- Chicago Mayor Emanuel’s “life plan or no diploma” scheme meddles in grads’ lives [Amy Alkon]
- Sounds like must viewing: School, Inc. is a three-part documentary on state of US education system based on work of late Cato scholar Andrew Coulson;
- On both health care and K-12, U.S. tops the charts in cost but not in outcome quality. Yet people tend to draw very different lessons from the one case than the other [Arnold Kling]
- Attacking appointee Candice Jackson, civil rights orgs “defend [educational] practices that the courts have ruled illegal, and every current U.S. Supreme Court justice would find illegal.” [Hans Bader, CEI]
- Keen to “decolonize” curriculum, Boston Public Schools buy into dubious map theories [Kevin Mahnken, The 74 Million]
They might want to check ahead of time on whether this is constitutional: “A task force set up [by Mayor Steve Adler] to evaluate institutional racism in Austin is recommending the city create a fund with a goal of raising $600 million to buy and preserve affordable housing for minorities — giving preference to those previously displaced from gentrified areas.” [Elizabeth Findell, Austin American-Statesman]
- Bad idea keeps spreading: “Philadelphia to Prohibit Asking Job Applicants About Their Prior Wage History” [Ford Harrison] Bill introduced in Maryland legislature [Danielle Gaines, Frederick News-Post on HB 398]
- “New York (State and City) Imposes New Rules for Freelancers, State Contracts” [Daniel Schwartz]
- On the minimum wage, lame reporting and motivated reasoning make war on Econ 101 [David Boaz and Ryan Bourne, Cato]
- In final Obama days, EEOC finalizes rules toughening affirmative action requirements for federal agency employers regarding workers with disabilities [Joe Seiner, Workplace Prof]
- Study: Indictments of union officials correlate with close election outcomes [Mitch Downey via Tyler Cowen]
- “Ohio again tries to restore sanity to its bonkers employment discrimination law” [Jon Hyman]
- Ilya Shapiro on round II of Fisher v. University of Texas, the racial preferences case [Pope Center]
- “Supreme Court Endorses Tribal Courts; Bad News For Corporate Defendants?” [Daniel Fisher on Sixth Amendment case U.S. v. Bryant]
- “Is The Consumer Financial Protection Bureau Unconstitutional?” [Susan Dudley]
- “Dueling perspectives on Lochner v. United States” [Andrew Hamm, SCOTUSBlog on Paul Kens vs. Randy Barnett debate, earlier]
- First Amendment and commercial speech: “Crazy Law Allows ‘Discounts’ for Cash but Not ‘Surcharges’ for Credit” [Ilya Shapiro on Expressions Hair Design case]
- Who ‘ya gonna call if you need a Third Amendment lawyer? [humor]
The Washington Post humors the super-silly liberal fantasy of impeaching Justice Scalia for discussing the affirmative action mismatch argument, an argument that 1) was briefed by lawyers in the case at hand, Fisher v. University of Texas; 2) has come up in the Court’s earlier racial preference jurisprudence and been endorsed by fellow Justice Clarence Thomas; 3) has been aired extensively in places like the Washington Post itself without the ceiling caving in. [Valerie Strauss, Washington Post “Answer Sheet”]
Of course the Washington Post itself would be a better newspaper if its writers on relevant beats took the time to read the paper’s own Volokh Conspiracy, which this week has been hosting a series of guest blog posts by Prof. Rick Sander, best known proponent of the mismatch theory.
Some have questioned whether Scalia was proceeding down a path irrelevant to the Court’s eventual ruling on constitutionality. Here is one possible source of relevance, per James Taranto’s discussion: “Kennedy, unlike Scalia and Thomas, endorsed [in an earlier university racial preference case] the premise that those benefits [specifically, educational benefits obtainable from greater diversity] constitute a “compelling interest” that would justify preferences if the other components of the strict-scrutiny test can be met.” Kennedy’s approach leaves open the possibility that this constitutional justification could be refuted by an empirical showing that the net benefits add up to less than a “compelling interest.”
- Far-reaching, legally dubious new mandate: 37-page “Dear Colleague” letter from Washington launches new “education equity initiative” directing local schools to ensure all children “equal access to educational resources” [R. Shep Melnick, Education Next and WSJ]
- “‘Tag is not banned,’ [the school district] insisted.” [Fred Barbash, Washington Post; Lenore Skenazy; Mercer Island, Wash.]
- University of Texas now blurs racial preferences into “holistic” admission review, Supreme Court should take look [Ilya Shapiro]
- Feds vs. due process: Michigan State case goes well beyond itself-notorious OCR Dear Colleague letter [KC Johnson; related Hans Bader on Tufts and other cases] Emily Yoffe: not so fast on latest “one in five” study [Slate; more, Stuart Taylor Jr.] “You cannot build justice for women on injustice for men.” [powerful Wendy McElroy speech debating Jessica Valenti]
- Trashing copies of a student paper to keep content from being read? 171 Wesleyan students/alums: “Go for it!” [Popehat, Scott Greenfield] “Editorial independence remains a huge priority for us” says the Wesleyan Argus editor. Doesn’t sound as if her adversaries see it that way [Robby Soave, Reason]
- Robert Klitzman: Institutional Review Boards at research institutions could benefit from transparency and respect for precedent [via Zachary Schrag]
- Donald Trump’s battle with New York Attorney General Eric Schneiderman over proprietary “Trump University” [Emma Brown, Washington Post]
Schuette has been ridiculed by preference opponents for posing the question of whether the equal protection of the laws — i.e., race neutrality — violates the Fourteenth Amendment’s guarantee of equal protection. But even BAMN did not have the temerity to make so illogical a claim. Rather than arguing that a ban on racial preferences was unconstitutional per se, BAMN was forced to take up an arcane line of Supreme Court precedent that turned its complaint against Proposal 2 essentially into a quasi-voting-rights claim. It was the locus of decision-making, not the content of Proposal 2, that was unconstitutional, BAMN alleged. The proponents of Proposal 2 had denied minorities the ability to participate meaningfully in the political process, the group said, by resolving the question of racial preferences through a state ballot initiative, rather than at the university level.
This odd line of attack derived from the Supreme Court’s little-known “political process” doctrine, stemming in part from a 1982 case, Washington v. Seattle School Dist. No. 1. The Seattle City Council had passed a law requiring school busing to integrate local schools. In response, Washington state voters passed an initiative banning busing as a response to anything other than deliberate school segregation. Hearing a challenge to that initiative, the Supreme Court ruled that by moving the question of busing from a local to a state level, busing opponents had erected barriers to minorities’ right to political participation and had made it harder for them to defend their interests in the political arena, therefore denying them the equal protection of the laws.
The political-process doctrine is a jurisprudential disaster, made up out of thin air and shot through with unsupportable empirical assumptions — such as that higher levels of governmental organization inherently disadvantage minorities. The civil rights movement, after all, embraced the idea that the federal government was a better protector of minority rights than states or localities. Anti-preference voter initiatives failed at different stages in Missouri and Colorado, belying the claim that a voter referendum is stacked against minorities. Moreover, it’s preposterous to assert as a legal matter that a legitimate method of lawmaking suddenly becomes constitutionally infirm if a court deems its subject matter to be “racial.” The political-process doctrine is simply an ad hoc, desperate means of overturning on process grounds laws that a court couldn’t otherwise invalidate on their merits. And its application to the Michigan case produced several unintended consequences for preference supporters.
She also has some interesting speculation as to why the Court plurality might have chosen to keep the political process doctrine “on life support” rather than overrule it forthrightly. Read the whole thing here.
Scalia sets the stage beautifully: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” The drama, however, is not destined to play out on that rhetorical stage, since all eight Justices, even Sotomayor and Ginsburg, claim to believe that the Equal Protection issue is only whether Michigan citizens chose a constitutionally valid method by which to end preferences.
To me, this much increased the interest of the case. The constitutionality of racial preferences as such has been thrashed out for years in so many high-profile Court decisions that anyone who cares has had ample chance to think about the issue. There has been far less attention to the unprincipled, un-administrable, substance-masquerading-as-procedure Reitman/Hunter/Seattle line of cases, by which the Court occasionally and selectively intervenes to reverse democratically arrived-at processes when they come out with the “wrong” policy answer. Scalia and Thomas are ready to overrule this bad line of cases directly; the plurality, for better or worse, are not (yet) willing to do so, and instead limit the cases’ reach in ways that neither Scalia nor Sotomayor find logically compelling.
Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best … imprecise. All the other Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders “race” in a way convenient to her purposes, using it to include Hispanic-Americans (who aren’t a race) while breathing not one word about Asian-Americans (a more genuine racial classification whose situation of being both historically disadvantaged *and* discriminated against in university admissions cries out for recognition). “Race matters,” indeed. More thoughts: Roger Pilon and Ilya Shapiro, Cato. (adapted newer version at Cato at Liberty, and thanks for SCOTUSBlog mention).