Yesterday I suggested to plaintiff's counsel that she ask CA4 to extend the time for seeking rehearing en banc until ten days after the Supreme court's decisions.
A story regarding Ronald Reagan when he was governor of CA: He was working in his office with some aides around him, one of whom remarked - I don't remember the context of the conversation now - that soon the California university system would be primarily Asians.
Reagan replied, "So what?" and kept working.
My opinion exactly. If TJ was primarily Asians, so what? If our education system doesn't start catering more to talent and less to group identity, any hope we have for continuing to dominate as world leader will be futile.
Great post. Paul has highlighted how hard it will be to cause the group-favoring tigers to change their stripes regardless of what the Supreme Court decides in the Harvard and North Carolina cases. The one thing that might work is if strong penalties are imposed for left-wing violation of civil rights laws. Jim Dueholm
The majority opinion endorses a certain reduction in Asian admissions on racialist grounds. Does the majority opinion offer a limiting principle of any kind? They note that Asians still represent the majority of admissions. Is 50% really the red line here? That seems untenable for a number of reasons. What interests me is the motivation for the majority opinion. An appeal will be filed with SCOTUS. What does the majority think will happen should the appeal be accepted? Regardless of offence given, if the reasoning behind the majority opinion is itself .shoddy that alone makes it likely to be overturned. So, why?
I certainly hate official discrimination, but in this case the new policy in itself does not seem objectionable. One can well imagine this policy--of admitting the top students from each of the schools in the region--having been in place de novo with no discriminatory intent.
On its face it is reasonable on a number of grounds, including helping to ensure a broader base of political support for elite schools. It is difficult to imagine that the plaintiffs could have prevailed, or even gotten a hearing, if this had always been the policy. Do we want courts to strike down democratically agreed policies that are otherwise reasonable because they are a change from previously reasonable policies?
As for "before and after," for decades conservatives have criticized "disparate impact" as a grounds for over ruling otherwise neutral policies. Do we want to change that view just because "our side" are the ones suffering the "disparate impact."
The constitutional problem with the new policy isn't that it has a disparate impact on Asian-Americans. The problem is that this was the purpose of the new policy -- to help blacks and hispanics at the expense of Asian-American. It's unconstitutional for the state to make policy changes for this purpose.
Holding unconstitutional a policy which would be acceptable de novo on the grounds that the act of changing the policy is done for bad motives sounds uncomfortably like many arguments leftists have made over the years. For example, Democrats enacted mail-in and early voting procedures in various states; Republicans objected in principle, but also because there was a surge in participation from various Democratic-leaning groups, particularly blacks. When Republicans pass laws reducing early voting or mail-in voting, Democrats describe that as an attempt to make it harder for blacks to vote. The result is that the policy changes can only go in one direction; an attempt to undo them is cast as illicit discrimination.
I also recall when Anthony Kennedy struck down Colorado's fines on the baker who refused to bake a cake for a homosexual wedding on the grounds that the records of politicians' conversations showed an "undue hostility to religion." I thought Kennedy made a fool of himself. First of all, what would a "due hostility" look like? Secondly, he provided politicians with a roadmap for oppression: simply avoid leaving a paper trail. The correct holding would be that the law violated the free exercise of religion regardless of the motives of the authors.
Suppose, as Richard Vigilante writes, people want to want to adopt the new policy of admitting the top students from each school on the merits. How can they get past the taint of the current racially motivated proposal? Are courts supposed to administer truth serum? Does this become a game of don't-leave-a-paper-trail?
I do not know whether Paul has any court precedents in mind when he writes "It's unconstitutional for the state to make policy changes for this purpose." If so, I simply think they're wrong. If motive is enough to make a law unconstitutional, there is no limiting principle. You may as well claim that it is unconstitutional for voters to vote for the wrong candidate if their votes are motivated by racism.
"Public institutions can change their selection policies in any way they want, as long as they don’t change them for the purpose of aiding one racial group at the expense of another. "
I have a serious problem with legal reasoning that relies on motives to determine constitutionality. Leftists have employed this approach for decades, sometimes resulting in farce, such as when a judge blocked Trump's immigration restrictions from various countries in 2017 based on his campaign rhetoric. Legal arguments will devolve into accusations of bad faith if we look at motive rather than the content of the policies.
Relying on motive is the only reasoning that will work in a constitutional case claiming discrimination by a state actor. It's firmly established that only intentional discrimination violates the Constitution.
Yes, but that isn't the issue here. The new school admissions policy does not racially discriminate; the only "discrimination" is in the motives themselves.
Yesterday I suggested to plaintiff's counsel that she ask CA4 to extend the time for seeking rehearing en banc until ten days after the Supreme court's decisions.
A story regarding Ronald Reagan when he was governor of CA: He was working in his office with some aides around him, one of whom remarked - I don't remember the context of the conversation now - that soon the California university system would be primarily Asians.
Reagan replied, "So what?" and kept working.
My opinion exactly. If TJ was primarily Asians, so what? If our education system doesn't start catering more to talent and less to group identity, any hope we have for continuing to dominate as world leader will be futile.
Great post. Paul has highlighted how hard it will be to cause the group-favoring tigers to change their stripes regardless of what the Supreme Court decides in the Harvard and North Carolina cases. The one thing that might work is if strong penalties are imposed for left-wing violation of civil rights laws. Jim Dueholm
The majority opinion endorses a certain reduction in Asian admissions on racialist grounds. Does the majority opinion offer a limiting principle of any kind? They note that Asians still represent the majority of admissions. Is 50% really the red line here? That seems untenable for a number of reasons. What interests me is the motivation for the majority opinion. An appeal will be filed with SCOTUS. What does the majority think will happen should the appeal be accepted? Regardless of offence given, if the reasoning behind the majority opinion is itself .shoddy that alone makes it likely to be overturned. So, why?
I certainly hate official discrimination, but in this case the new policy in itself does not seem objectionable. One can well imagine this policy--of admitting the top students from each of the schools in the region--having been in place de novo with no discriminatory intent.
On its face it is reasonable on a number of grounds, including helping to ensure a broader base of political support for elite schools. It is difficult to imagine that the plaintiffs could have prevailed, or even gotten a hearing, if this had always been the policy. Do we want courts to strike down democratically agreed policies that are otherwise reasonable because they are a change from previously reasonable policies?
As for "before and after," for decades conservatives have criticized "disparate impact" as a grounds for over ruling otherwise neutral policies. Do we want to change that view just because "our side" are the ones suffering the "disparate impact."
The constitutional problem with the new policy isn't that it has a disparate impact on Asian-Americans. The problem is that this was the purpose of the new policy -- to help blacks and hispanics at the expense of Asian-American. It's unconstitutional for the state to make policy changes for this purpose.
Holding unconstitutional a policy which would be acceptable de novo on the grounds that the act of changing the policy is done for bad motives sounds uncomfortably like many arguments leftists have made over the years. For example, Democrats enacted mail-in and early voting procedures in various states; Republicans objected in principle, but also because there was a surge in participation from various Democratic-leaning groups, particularly blacks. When Republicans pass laws reducing early voting or mail-in voting, Democrats describe that as an attempt to make it harder for blacks to vote. The result is that the policy changes can only go in one direction; an attempt to undo them is cast as illicit discrimination.
I also recall when Anthony Kennedy struck down Colorado's fines on the baker who refused to bake a cake for a homosexual wedding on the grounds that the records of politicians' conversations showed an "undue hostility to religion." I thought Kennedy made a fool of himself. First of all, what would a "due hostility" look like? Secondly, he provided politicians with a roadmap for oppression: simply avoid leaving a paper trail. The correct holding would be that the law violated the free exercise of religion regardless of the motives of the authors.
Suppose, as Richard Vigilante writes, people want to want to adopt the new policy of admitting the top students from each school on the merits. How can they get past the taint of the current racially motivated proposal? Are courts supposed to administer truth serum? Does this become a game of don't-leave-a-paper-trail?
I do not know whether Paul has any court precedents in mind when he writes "It's unconstitutional for the state to make policy changes for this purpose." If so, I simply think they're wrong. If motive is enough to make a law unconstitutional, there is no limiting principle. You may as well claim that it is unconstitutional for voters to vote for the wrong candidate if their votes are motivated by racism.
"Public institutions can change their selection policies in any way they want, as long as they don’t change them for the purpose of aiding one racial group at the expense of another. "
I have a serious problem with legal reasoning that relies on motives to determine constitutionality. Leftists have employed this approach for decades, sometimes resulting in farce, such as when a judge blocked Trump's immigration restrictions from various countries in 2017 based on his campaign rhetoric. Legal arguments will devolve into accusations of bad faith if we look at motive rather than the content of the policies.
Relying on motive is the only reasoning that will work in a constitutional case claiming discrimination by a state actor. It's firmly established that only intentional discrimination violates the Constitution.
Yes, but that isn't the issue here. The new school admissions policy does not racially discriminate; the only "discrimination" is in the motives themselves.