SCOTUS to hear affirmative action challenge

[ThomasIsUnderrated]

WASHINGTON –– The Supreme Court re-entered the debate over affirmative action Monday, agreeing to decide if minorities can be given a boost to get into public universities.

The court will decide by next June if race can be used in college admissions, an issue that the justices have dealt with only once before, in a cloudy 1978 ruling that led to more confusion.

The justices will consider whether white applicants to the University of Michigan and its law school were unconstitutionally turned down because of their race.

Read the rest HERE (http://www.washingtonpost.com/wp-dyn/articles/A63293-2002Dec2.html)

[ThomasIsUnderrated]

This is a tough one to call. My guess is that this type of affirmative action will be struck down on the basis that there is not a need for it today. I, of course, just think it is unconstitutional period.

[ThomasIsUnderrated]

I rarely bump anything that I myself post, but I feel this is worth it. What are your thoughts? Predictions?

[DesertFox]

I HOPE they'll CLEARLY reject it, but got my doubts. Them boys seem to like muddying the waters even more. Let Clarence write the lead opinion and all will turn out as it should. He's the onliest one I really trust.

[MaximumSam]

You are right, this one is tough to call. I will guess it will pass muster or be modified but not thrown out entirely. The kicker will be Michigan's argument that without their plan, only .04% of the student body will be composed of racial minorities. It will be tough to write a majority opinion that addresses that statistic but claims there is no need to remedy past discrimiantion. On the other hand, they don't have to address the statistics at all if they simply decide this plan isn't needed anymore, end of story. It will be close.

[ThomasIsUnderrated]

Yep, this will be an "end of June" decision for sure. Sam, I am suspicious about that statistic (not blaming you, just the article). I heard somewhere else that it was 4 percent not .04 percent. That is a significant difference. Either way, it's hard to know what the actual percentage would be if affirmative action was taken away.

I have a feeling the Court still won't clarify the issue. They may say Michigan's policy isn't addressing a true need, but leave the door open for other programs. The Circuits will split again, and the Court will be right back where it started. If the Court just said all programs of this nature are unconstitutional period, the case would be closed.

[Gone_with_the_Wind]

It's not hard for me to call. I'd strike it down in no time. But SCOTUS...is another story. They are way too liberal these days for our good.

[ThomasIsUnderrated]

GWTW,

Yes, I agree. I am really starting to think there are four liberals, two moderate liberals, one moderate conservative, and two conservatives on the Court. This, of course, is putting the terms "liberal" and "conservative" at their extremes. I really only believe the four liberals are as "moderate" as the media claims they are because they need to win over one of the true moderates, O'Connor and Kennedy. A year ago, I would not have felt this way. Despite Kennedy's decision to uphold Roe, I always felt he was right of center. However, his decision in the mentally retarded case really changed my mind. That is, he agreed to Stevens' opinion without any other limiting statement. Stevens' opinion was a "liberal" opinion. So, I was quite shocked. I always found Kennedy to be one of the most likeable justices.

[MaximumSam]

TIU,

I have a feeling the Court still won't clarify the issue. They may say Michigan's policy isn't addressing a true need, but leave the door open for other programs. The Circuits will split again, and the Court will be right back where it started. If the Court just said all programs of this nature are unconstitutional period, the case would be closed.

That's a possibility too. I have heard that Michigan's program is really wonky, so they may just try and tighten the standards without any clear decision. However, they may try to make a clear standard, since that was probably the reason they took that case. I doubt they will end all admissions that use race as a factor - that would basically mean that colleges couldn't try to make diversity a goal. It would also open up all sorts of lawsuits for people who think they think they got passed over unfairly. I am completely for making race a factor, as some of the best education I have ever received was being around people I would never have met otherwise.

[Venus]

"That's a possibility too. I have heard that Michigan's program is really wonky, so they may just try and tighten the standards without any clear decision. However, they may try to make a clear standard, since that was probably the reason they took that case. I doubt they will end all admissions that use race as a factor - that would basically mean that colleges couldn't try to make diversity a goal. It would also open up all sorts of lawsuits for people who think they think they got passed over unfairly. I am completely for making race a factor, as some of the best education I have ever received was being around people I would never have met otherwise."

Osammie, you started out making a halfway rational post, but, alas, it fell apart:

" that would basically mean that colleges couldn't try to make diversity a goal."

A sweeping decision ending use of the race card for admissions would not prevent the colleges from conducting minority outreach programs, so long as there were no special incentives offered or privileges used in getting minorities to apply for admission.

"It would also open up all sorts of lawsuits for people who think they think they got passed over unfairly."

With only my imagination available as a tool for considering what you would consider 'unfair', or think others would view 'unfair' enough to file suit, I'd say that not using race as a factor of admission is the most fair, and precisely what the case is about. Thus, if the SCOTUS decides it's not fair to use race as a factor, there is no case such as you imagine to bring because it'd already have been decided by this case. See how that works?

"I am completely for making race a factor, as some of the best education I have ever received was being around people I would never have met otherwise"

Huh? Can you straighten that out and make some sense of it for us? Thanks.

[MaximumSam]

Venus,

A sweeping decision ending use of the race card for admissions would not prevent the colleges from conducting minority outreach programs, so long as there were no special incentives offered or privileges used in getting minorities to apply for admission.

I wasn't referring to minority outreach programs. Maybe that's why you didn't understand my post. Regardless, if a college like Michigan will lose a large amount of minorities because of this, it might as well scrap the outreach programs. I mean diversity as a goal year after year - as in there won't be diversity. Not that colleges can't like diversity as some abstract principle that will never be reached.

With only my imagination available as a tool for considering what you would consider 'unfair', or think others would view 'unfair' enough to file suit, I'd say that not using race as a factor of admission is the most fair, and precisely what the case is about. Thus, if the SCOTUS decides it's not fair to use race as a factor, there is no case such as you imagine to bring because it'd already have been decided by this case. See how that works?

Then someone could bring suit if he was white and got a 164 on the LSAT, and he wasn't let into a school that let a black person with a 163 on the LSAT. Hence, as I said, people who think they were passed over unfairly would be able to bring suit, and there are lots and lots of people who will think they were passed over unfairly.

Huh? Can you straighten that out and make some sense of it for us? Thanks.

As in, dealing with people from different backgrounds and places was more useful and fulfilling than zoology or political science. Does that make sense?

[ThomasIsUnderrated]

Sam,

I can see your point about the number of lawsuits increasing, but as it stands right now, there are many, many suits out there because the law isn't clear. I don't see it becoming clear unless the Court takes an extreme position on the issue (which I don't think it will do).

[Venus]

Osammie clarified:

"I wasn't referring to minority outreach programs. Maybe that's why you didn't understand my post. Regardless, if a college like Michigan will lose a large amount of minorities because of this, it might as well scrap the outreach programs. I mean diversity as a goal year after year - as in there won't be diversity. Not that colleges can't like diversity as some abstract principle that will never be reached."

Well, the outreach programs I'm describing probably wouldn't yield the utopian 'diversity' quotas the colleges would like to see, but it hasn't been proved that minority enrollment would decrease at all through fair and equal admittance competition. Isn't the notion of a decline in minority enrollment because of fair and equal admittance competition just a legal theory?

"Then someone could bring suit if he was white and got a 164 on the LSAT, and he wasn't let into a school that let a black person with a 163 on the LSAT. Hence, as I said, people who think they were passed over unfairly would be able to bring suit, and there are lots and lots of people who will think they were passed over unfairly."

I see. You were speaking of suits against the colleges for claims of violations of the new law (assuming SCOTUS largely scraps race card admissions) pertaining to potentially arbitrary admission choices made (by the colleges)..

"As in, dealing with people from different backgrounds and places was more useful and fulfilling than zoology or political science. Does that make sense?"

I agree that sitting in a 'pub swilling a tall one with some interesting character from say, Sweden or Australia or even Burbank would be more fulfilling (and filling /ubbthreads/images/graemlins/grin.gif) than sitting in Econ 101, but how is it more useful when at least the econ class counts toward a degree (assuming it still does) and you might even learn that high taxation is bad for the economy, or some other such obvious lesson? /ubbthreads/images/graemlins/smile.gif

[MaximumSam]

Venus,

Well, the outreach programs I'm describing probably wouldn't yield the utopian 'diversity' quotas the colleges would like to see, but it hasn't been proved that minority enrollment would decrease at all through fair and equal admittance competition. Isn't the notion of a decline in minority enrollment because of fair and equal admittance competition just a legal theory?

I doubt it. Michigan claims minority enrollment of 15% - that is less than the percentage of minorities of the country as a whole. They have to use race as a factor in order to keep this number (and I don't know much about Michigan's plan, but I think race is a very important factor there - being from a racial minority is a big plus). Therefore, it seems like common sense that the percentage would plummer if Michigan could no longer use this as a factor - outreach programs may do some good, but they might not do anything either. Few black people want to go to a school where there are no other black people.


I agree that sitting in a 'pub swilling a tall one with some interesting character from say, Sweden or Australia or even Burbank would be more fulfilling (and filling ) than sitting in Econ 101, but how is it more useful when at least the econ class counts toward a degree (assuming it still does) and you might even learn that high taxation is bad for the economy, or some other such obvious lesson?

LOL. /ubbthreads/images/graemlins/wink.gif As I make my journey and get closer and closer to becoming a productive member of society, I realize it is just as much who you know as what you know. Also, as lawyer, (and I imagine any job where you deal with people) - having a lot of experience dealing with different sorts of people is a huge huge plus. Any schmoe out of law school can know to convict someone, you need to be able to prove all the elements of the crime. But if I were to prosecute someone, I would learn most of what I needed to do on the job, and a lot of what I would do is talk to different people of widely different backgrounds. Good people skills is a must, and good people skills means more than just talking to middle class white Christians.

[Venus]

"I doubt it. Michigan claims minority enrollment of 15% - that is less than the percentage of minorities of the country as a whole. They have to use race as a factor in order to keep this number (and I don't know much about Michigan's plan, but I think race is a very important factor there - being from a racial minority is a big plus). Therefore, it seems like common sense that the percentage would plummer if Michigan could no longer use this as a factor - outreach programs may do some good, but they might not do anything either. Few black people want to go to a school where there are no other black people."

Why is it valuable to 'keep' a certain level of minority enrollment?

"LOL. As I make my journey and get closer and closer to becoming a productive member of society, I realize it is just as much who you know as what you know."

True.

"Also, as lawyer, (and I imagine any job where you deal with people) - having a lot of experience dealing with different sorts of people is a huge huge plus. Any schmoe out of law school can know to convict someone, you need to be able to prove all the elements of the crime. But if I were to prosecute someone, I would learn most of what I needed to do on the job, and a lot of what I would do is talk to different people of widely different backgrounds. Good people skills is a must, and good people skills means more than just talking to middle class white Christians."

Osammie, are you leaning toward becoming a prosecutor? /ubbthreads/images/graemlins/smile.gif

[ThomasIsUnderrated]

Sam,

I would be pleasantly surprised if you decided to become a prosecutor. /ubbthreads/images/graemlins/smile.gif

[MaximumSam]

Venus,

Why is it valuable to 'keep' a certain level of minority enrollment?


Well, there are lots of reasons. College is a place where people not only study, but live and work together. Like I said, I value greatly the opportunity to meet new people, and I think it is one of the greatest things a college can offer. Furthermore, there is the notion that people can be disadvantaged as minorities through money, lower education, etc. This plan helps people who wouldn't have gotten the opportunity otherwise. Finally, if the percentage gets too low, minorities may just mostly give up on thse colleges, and stick to colleges with high minority rates. I wouldn't say there is a magic level that is just right, but 15% seems ok. 10% would put the number of minority students at 1 in 10. 4% would be less than one in twenty. If the .04% is accurate, less than 1 in 2000 students would be a racial minority. That is unacceptable, IMHO.

Venus and TIU,

Osammie, are you leaning toward becoming a prosecutor?

Yes, I think so. I have decided I am too lazy to go after a big firm job. If I am going to work hard, I might as well try to fry rapists and drug dealers.

[Venus]

"Well, there are lots of reasons. College is a place where people not only study, but live and work together. Like I said, I value greatly the opportunity to meet new people, and I think it is one of the greatest things a college can offer. Furthermore, there is the notion that people can be disadvantaged as minorities through money, lower education, etc. This plan helps people who wouldn't have gotten the opportunity otherwise. Finally, if the percentage gets too low, minorities may just mostly give up on thse colleges, and stick to colleges with high minority rates. I wouldn't say there is a magic level that is just right, but 15% seems ok. 10% would put the number of minority students at 1 in 10. 4% would be less than one in twenty. If the .04% is accurate, less than 1 in 2000 students would be a racial minority. That is unacceptable, IMHO."

What if a passed-over white student is from poverty, a long line of poverty, white trash family, no shoes, no car, but a damn fine student? Should he be passed over for a middle-class black student, or a wealthy Hispanic student because his skin is white and his surname Irish?

BTW, aren't there two UM cases before the SCOTUS? One arose from the law school (one of the top law schools in the country, btw), and one from undergrad. Isn't the undergrad case a situation of a white student's chance of getting in is hundreds of times less than a minority student? It seems to me the lefties are extremely vulnerable on that one.

"Venus and TIU,

Osammie, are you leaning toward becoming a prosecutor?

Yes, I think so. I have decided I am too lazy to go after a big firm job. If I am going to work hard, I might as well try to fry rapists and drug dealers."

That's good news. /ubbthreads/images/graemlins/cool.gif Osammie, when will you be graduating? Do you realize you probably won't get handed a nice, fat felony case when you walk in the door on your first day? You'll be shaggin' DUI and shoplift cases for a spell. /ubbthreads/images/graemlins/grin.gif

[Chris]

</font><blockquote><font class="small">In reply to:</font><hr />
Venus: Osammie, are you leaning toward becoming a prosecutor?

Maxi: Yes, I think so. I have decided I am too lazy to go after a big firm job. If I am going to work hard, I might as well try to fry rapists and drug dealers.

[/ QUOTE ]

Why do I get the feeling that a lot of bad guys are going to start getting off a lot easier? /ubbthreads/images/graemlins/wink.gif

[Tazeeyore]

Unfortunately there is no reference in the Constitution disallowing this insanity called Affirmitive Action. The closest refutation to this legislation would be Article 14 Sec. 1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person withing its jurisdiction the equal protection of the laws."

The equal protection clause, arguably, should have made Affirmitive Action Unconstitutional. Exeption: The law was passed with due process of the law when the SCOTUS evaluated the ruling and voted it constituionaly viable. That does not make it right because the rights of one ethnic group are being abridged to give sway to another ethnic group. But refutation of this fact is certainly not uncommon by utterances from liberal law professors across America.

In the end the law abridging one groups rights and enhancing anothers is, and should always be considered unconstitutional.

[ThomasIsUnderrated]

</font><blockquote><font class="small">In reply to:</font><hr />
Chris said: Why do I get the feeling that a lot of bad guys are going to start getting off a lot easier?

[/ QUOTE ]


LOL. I was thinking the same thing, but I felt like being nice to Sam that day. /ubbthreads/images/graemlins/grin.gif Of course, when he stated that he would get to fry certain criminals that certainly made me happy! /ubbthreads/images/graemlins/wink.gif

[MaximumSam]

Venus,

What if a passed-over white student is from poverty, a long line of poverty, white trash family, no shoes, no car, but a damn fine student? Should he be passed over for a middle-class black student, or a wealthy Hispanic student because his skin is white and his surname Irish?

I don't think so. But that's why they have actual people doing the admissions. The more we restrict the admissions, the more it will just be a numbers crunch to see who gets in.

BTW, aren't there two UM cases before the SCOTUS? One arose from the law school (one of the top law schools in the country, btw), and one from undergrad. Isn't the undergrad case a situation of a white student's chance of getting in is hundreds of times less than a minority student? It seems to me the lefties are extremely vulnerable on that one.

Well, I don't know much about either of them, but that is consistent with what I heard, which is why I said their system was wonky.

That's good news. Osammie, when will you be graduating? Do you realize you probably won't get handed a nice, fat felony case when you walk in the door on your first day? You'll be shaggin' DUI and shoplift cases for a spell.

Bring on Winona!

[MaximumSam]

Taz,

The Fourteenth Amendment does apply to affirmative action, and it has been the basis through which much of affirmative action has been struck down as unconstitutional. However, just as some speech isn't protected even though the First Amendment says it is, some affirmatived action may be constitutional. It depends on how much of a need Michigan can show for it.

[Venus]

Osammie replied:

"I don't think so. But that's why they have actual people doing the admissions. The more we restrict the admissions, the more it will just be a numbers crunch to see who gets in."

Affirmative action is, in and of itself, a restriction. Don't you see that? Isn't the admission decision process already a function of scoring applicants? Isn't the real question whether or not race should be a scoring criterion?

"Well, I don't know much about either of them, but that is consistent with what I heard, which is why I said their system was wonky.'

Wonky notwithstanding, the disparity between the two admissions criteria formats within the same university system shows the deliberateness of the discrimination inasmuch as the white students are being discriminated against even more severely at the undergrad admission level. After all, it's a no-brainer that the white students aren't likely to get into the law school or any grad program if they can't get admitted into undergrad school. The disparity between the two separate admissions criteria formats within the same university system also points out the failure rate of minorities as undergrads in spite of the phenomenal admissions boost they have because the law school lets in far more whites as a percentage of its total enrollment as compared to the undergrad school. They have to, else their enrollment would be too low because of the high failure/drop-out rate of minorities at the undergrad level.

As a seprate issue, that phenomenon (admitting very large, lopsided numbers of minorities who fail or drop out at a high rate) contributes to the overall dumbing down of the country because each failed student's potential for education becomes a 'lost' commodity, leading to fewer scientists, engineers and all the other advanced professionals in the fields of study that have made this country the world leader for generations. Those students who can't or won't cut it would serve themselves and society better by either going to trade school or a good community college where they can improve their fundamental core education and study skills and decide if higher education is the right path for them, rather than occupying a seat that could be better filled by a productive, motivated, ambitious and better prepared student who will, as a matter of efficiency and practicality, successfully apply that education commodity to his and society's benefit - in other words, not let that education commodity just be flushed down the toilet.

"Bring on Winona!'

/ubbthreads/images/graemlins/grin.gif

[ThomasIsUnderrated]

Nice post Venus.

Sam, as a quick side note, what punishment do you think Winona deserves?

[Venus]

Osammie opined:

" However, just as some speech isn't protected even though the First Amendment says it is, some affirmatived action may be constitutional. It depends on how much of a need Michigan can show for it."

Is need the only factor? Should that need, momentarily assuming for the sake of argument that it's proved, trump the white students' right to equal protection?

[MaximumSam]

Venus,

Affirmative action is, in and of itself, a restriction. Don't you see that? Isn't the admission decision process already a function of scoring applicants? Isn't the real question whether or not race should be a scoring criterion?

But it is a restriction the school places on itself. There isn't any state statute here requiring schools to do this. Therefore, it isn't really a restriction. If the Court decided race cannot be used as a factor, the schools will have to be very careful in how they admit applicants, as they may be forced to defend their reasoning at some future point. While this has its good points, it will probably just lead to schools using very objective criteria like test scores. Of course, we ccan also debate the wisdom of that, but personally, I have never found test scores to be very useful.

Wonky notwithstanding, the disparity between the two admissions criteria formats within the same university system shows the deliberateness of the discrimination inasmuch as the white students are being discriminated against even more severely at the undergrad admission level. After all, it's a no-brainer that the white students aren't likely to get into the law school or any grad program if they can't get admitted into undergrad school. The disparity between the two separate admissions criteria formats within the same university system also points out the failure rate of minorities as undergrads in spite of the phenomenal admissions boost they have because the law school lets in far more whites as a percentage of its total enrollment as compared to the undergrad school. They have to, else their enrollment would be too low because of the high failure/drop-out rate of minorities at the undergrad level.

Do you have any sources on this. I looked for a bit but I couldn't find much, and my finals are next week so I ought to at least pay lip service to civil procedure II.

As a seprate issue, that phenomenon (admitting very large, lopsided numbers of minorities who fail or drop out at a high rate) contributes to the overall dumbing down of the country because each failed student's potential for education becomes a 'lost' commodity, leading to fewer scientists, engineers and all the other advanced professionals in the fields of study that have made this country the world leader for generations. Those students who can't or won't cut it would serve themselves and society better by either going to trade school or a good community college where they can improve their fundamental core education and study skills and decide if higher education is the right path for them, rather than occupying a seat that could be better filled by a productive, motivated, ambitious and better prepared student who will, as a matter of efficiency and practicality, successfully apply that education commodity to his and society's benefit - in other words, not let that education commodity just be flushed down the toilet.

I don't know if this is a valid issue or not. There are lots of colleges out there, all looking to increase enrollment. The best students are usually unaffected by affirmative action in any way - they are accepted to the best schools no matter what. It is only the bordeline white students that are hurt by affirmative action, if they are borderline students, are we really dumbing down anything? Besides, even if they don't get into elite schools, they will get into good schools.

[MaximumSam]

Sam, as a quick side note, what punishment do you think Winona deserves?

I haven't really followed her case much, although I think her defense was that she was just trying to play a role for a part or something. I suppose that makes some sense, but if I were the prosecutor I would take her down.

[MaximumSam]

Venus,

Is need the only factor? Should that need, momentarily assuming for the sake of argument that it's proved, trump the white students' right to equal protection?

Well, I was just explaining basic con law to Taz.
I'm just making the blanket statement that even though the 14th says we get equal protection, we don't actually get absolute equal protection. Generally, for categorization based on race, the Court applies the highest scrutiny, and so if Michigan can meet this scrutiny, the law will be upheld. I'm not sure what the Court will do here, as I haven't read the lower cases. I don't even know if they'll apply strict scrutiny. But if they do and Michigan passes it, then of course the law ought to be upheld.