Thursday, September 30, 2010

Affirmative Action for Elites . . . Not that there's anything wrong with that

In his popular course about justice, Michael Sandel spends a class session discussing with the students the modern debate about affirmative action.  As he invites the students to offer their views on the subject, the discussion soon reflects the same arguments we have now rehearsed for over a generation: the practice of affirmative action is either unfair and discriminatory, or else needed to correct past injustices or the way to attain a diverse student body.  This is not terribly surprising.  But one student in particular caught my attention. He argued that
 "racial discrimination is illegal in this country, and I believe that it was African-American leaders themselves, when Martin Luther King said he wanted to be judged not on the color of his skin, but by the content of his character, his merit, his achievement, and I just think that to decide solely based on someone's race is just inherently unfair.  I mean, if you want to correct based on disadvantaged backgrounds, that's fine, but there are also disadvantaged white people as well.  It shouldn't matter . . ." 
The student conceded, in response to a question from Sandel, that grades and tests scores are not enough; "there is more than that.  Universities need to promote diversity."  His objection focused on the one factor, race, that he argued applicants could not control.

There is a lot in that exchange, and again, there is really nothing new there. But later in the conversation, in response to a point to a student, Sandel asked about legacy admissions.  Should those exist?  Are they fair? These were uncomfortable, difficult questions, and the student's response reflected that fact.
"I do believe that, in terms of a legacy admission, you shouldn't have a special preference, I mean, there is a legacy admission, you could argue, as another part of diversity.  You could say it's important to have a small percentage of people that have just several generations of their family attend a place like Harvard."
Even while saying this, the student wasn't hedging.  Race was just different.  To him, legacy considerations  "should not be an advantage factor like race.  That should just be another part of promoting diversity." Sandel pushed him one final time, and asked him whether "alumni status, should it count at all." The student paused a moment, and then, unsurprisingly,  said "yes. it should count."

This is the ugly underside of the debate over racial preferences and university admissions.  Richard Kahlenberg, a longstanding participant in this debate, argues in this morning's New York Times that legacy admissions are the biggest affirmative action program in the country.  He argues that they are bad policy, illegal, unconstitutional, and unknown around the world.  To the charge that legacy is often used as a tiebreaker among applicants, he offers a recent study that concluded that legacy standing is the equivalent of 160 points on the SAT (on a 400 to 1600 point scale), which is close to the gain attributed to racial factors.

Where are the marches and lawsuits fighting against this injustice?  Where is Ward Connerly when you need him?  And how do we explain the contrasting reactions?  Or put another way, can we conclude, with any degree of certainty, that criticisms of affirmative action are tinged, at some level, by racism?

I have two reactions.

Wednesday, September 29, 2010

Killing American Citizens Without "Due Process"

In a lawsuit filed late last month, the father of U.S. citizen Anwar Awlaki is asking the federal courts to prevent the Obama administration from assassinating his son without providing him with any kind of due process whatsoever. In response to the suit, the Obama administration raises familiar arguments; for example, that the father lacks standing to proceed, or that the issue itself is a political question and outside the jurisdiction of the federal courts. They also argue, however, that their program to assassinate U.S. citizens abroad is a "state secret," which means that they do not have to disclose any information about who they intend to kill, or why.

As a moral question, this is appalling in so many ways that it is hard to know where to begin. Glen Greenwald put it best: " Obama's now asserting a power so radical -- the right to kill American citizens and do so in total secrecy, beyond even the reach of the courts -- that it's 'too harsh even for' [David Rivkin,] one of the most far-right War on Terror cheerleading-lawyers in the nation."  If the U.S. government can do this, is there anything they cannot do?

As a question of history, or politics,or institutional competence, however, this is a far more difficult question. 

Saturday, September 25, 2010

Standing, Restraint as Virtue, and Conservative Judicial Politics

Just this past week, while teaching a seminar on the Supreme Court as an institution, I wondered about the way we teach constitutional law to our 1L's.  I know that law students need to learn law, and as such the legal model must be given pride of place.  I get that.  But, assuming con law has not changed from the time I took it in the early 90's -- and a quick perusal of the leading con law case books appears to confirm my intuition -- how do we explain the exclusive attention we pay to law and legal materials as dependent variables, at the expense of everything else?  That is, how do we excuse the fact that political science models -- particularly the attitudinal model and the strategic models -- are seldom part of the discussion in law schools across the country?  How else could we possibly explain what is going on, in order to be able to predict the future?

These questions on mind, I read with great interest Linda Greenhouse's latest online entry in the Times.  Her point is quite simple though no less important: standing doctrine, which determines whether a party has been harmed and thus can bring a suit in federal court, has long been interpreted narrowly by conservative jurists.  But according to Greenhouse, this traditional approach is soon to change, as conservative judges "are suddenly throwing the courthouse doors open wide."

This is certainly interesting. And calling Senator Sessions a hypocrite is always great fun.

However, this should not be big news to anyone paying attention.

Thursday, September 23, 2010

School Desegregation in Action (cont.)

In reaction to a Washington Post article on the real-world outcome of the Parents Involved decision, Guy writes that the Court's impact "has been negative at best."  I am not sure what he means by this, especially in light of the very passage that he cites.  For example, and as the article explains, Seattle stopped its efforts to implement a policy of classroom diversity; school assignments were changed in many places, including New York City and Beaumont, Texas; and teacher assignment plans were struck down in Memphis and Cincinnati in cases that cited Parents Involved approvingly.  It is hard to conclude from these facts that the impact of the Court's opinion "has been negative at best."  This is an important question.  I wish he'd tell us exactly what he means.

Whichever way one feels about the impact of Parents Involved, his comment does point to one of the most interesting aspects of the Supreme Court's role in American society.  Why in the world would any political actor acquiesce to a mandate from the Court?  

Monday, September 20, 2010

Kennedy's & Roberts' Jurisprudence in Action: School Desegregation

Robert Barnes of the Washington Post has a a wonderful article on the changes wrought by the United States Supreme Court's 2007 decision, Parents Involved Community School District v. Seattle.  Parents Involved is a 5-4 decision by the Court in which Chief Justice Roberts attempted to severely limit, if not eliminate, the ability of public school's to use race to achieve racial equality. The controlling opinion was written by Justice Kennedy, who found the Roberts opinion too extreme.  Roberts's opinion precluded the public schools from using race to achieve racial equality, but Kennedy's opinion provided a limited way forward. 

Robert Barnes returned to Louisville, Kentucky and one of the school districts at issue before the Supreme Court, to determine how they were responding to the Court's decision.  Here is a short excerpt from the article:
The impact of the decision, which directly involved schools here and in Seattle and set rules for school boards across the nation, already has been noteworthy. Seattle has mostly abandoned efforts to force diverse classrooms; it has returned to a system of neighborhood schools augmented by magnet schools and new educational programs scattered throughout the city.
After the ruling, the Bush administration, which supported the challenges to the plans in Seattle and Louisville, warned other local school officials to be wary of assignment plans that relied on race. School attorneys advised their boards that such plans were sure to be challenged. The message was reinforced when conservative legal groups forced changes in school assignments in places as diverse as New York City and Beaumont, Tex.
The decision was cited when courts struck down teacher-assignment plans based on race in Memphis and Cincinnati.
But Louisville, along with a number of other like-minded systems across the country, is betting that using socioeconomic factors, not just race, will help maintain diverse schools and meet the Supreme Court's requirements.
Those who have battled the school system here say it is nothing more than an end run around the court's decision, a misguided experiment by school officials who should be focused on the bigger goal of improving education.

I highly recommend this piece.  It fits with the literature on the the ability of the Supreme Court to affect change. The conservative majority on the Supreme Court clearly attempted to profoundly change the ability of the government to use race to achieve racial equality.  After reading this article, in my view, the Court's impact has been negative, at best. 

Thursday, September 16, 2010

On Fenty & Why Ta-Nehisi Coates is Mistaken

On his blog over at, Ta-Nehisi Coates blames Adrian Fenty, who recently lost his mayoral bid for reelection as governor of the District of Columbia and Michelle Rhee, the Chancellor of the DC public schools for not sufficiently selling voters on their policy of change for DC. 

Coates notes that:
In a democracy, persuasion is a necessary aspect of politics. Large-scale reform certainly complicates persuasion, but the two aren't antithetical. 
It is true that persuasion is an important component of politics, but did the voters of DC really need Fenty and Rhee to tell them how bad the schools were before the Fenty administration came into power and how much things have improved?  If they were not persuaded by the actual improvement to their lives is there much that Fenty and Rhee could have done to persuade them that Fenty deserved to be reelected--short of promising to abandon his reform agenda? Perhaps more pertinently, what if there was a correlation between the aloof and gruff attitudes and the results?

Maybe it's time to spread the blame around.  Maybe voters should be blamed for not retaining an administration that was hellbent on making sure that DC's black kids had future.  Voters should be blamed for rejecting Fenty because he was not the right type of black person.    Voters should be blamed for rejecting someone who was fighting on their behalf against entrenched interests.  So maybe he was a little arrogant or aloof (for the sake of argument let's assume so), but were his policy prescriptions effective?  If they were and the voters rejected him nonetheless, then the blame lies with the voters and not with Fenty and Rhee. 

Monday, September 13, 2010

Sunday Morning Talk Shows Neglect Minorities, Women, and Democrats

In a study published in Green Bag, law student Alex Mitchell offers a stark demonstration of Sunday news shows' failure to represent even the limited diversity of the U.S. Congress in their guest pools.  ThinkProgress reports on the study here:

In 2009 the talk shows told us (by their selection of Congressional guests) that the people who matter are disproportionately white, male, senior and Republican — disproportionate not just when compared to the American population overall, but also when compared to the population of Congress itself,” concluded a study published this month in The Green Bag, a quarterly journal supported by the George Mason University School of Law.
The study, of the five network Sunday shows from February to December 2009, found that while 14.6 percent of members of Congress were minorities, just 2.5 percent of the Congressional TV guests were minorities; and that while 16.9 percent of members were female, 13.5 percent of the guests were female. 
The study also singled out “the 49 white, male U.S. senators in office six-plus years” who represented 9.2 percent of the Congressional populace, but 61.4 percent of the TV guests.

Sunday, September 12, 2010

Editor of Leading American Newsmagazine Reveals Contempt for Muslim-Americans

In this post to his New Republic blog, Martin Peretz, Editor-in-Chief of The New Republic, and (apparently and quite surprisingly) Lecturer in Social Studies at Harvard University:

1. seems to encourage "rall[ies] or demonstration[s] in America aimed at Muslim or Arab interests or their commitments to foreign governments and, more likely, to foreign insurgencies and, yes, quite alien philosophies";

2. observes what he describes as "the increasingly Islamicized but non-practicing Christian and democratic sovereignties of Europe";

3. claims that "Liberal political theory has virtually ignored the philosophical, legal and ethical questions posed by the threatening demographics of Europe."

4. suggests that Muslims may be indifferent to death even in Islamic lands: "I want to believe that Muslims are traumatized by the unrelieved murders in Islamic lands."

5. suggests that few Muslims protest mass slaughter: "Frankly, the only demonstration against a mass killing (after all, they happen nearly every day) I've read about was last week in Pakistan when some 30-odd people, not designated and not guilty of doing anything except going to a Shia shrine were blown right then and there.... Why do not Muslims raise their voices against these at once planned and random killings all over the Islamic world? ... And among those Muslims led by the Imam Rauf there is hardly one who has raised a fuss about the routine and random bloodshed that defines their brotherhood. "

6. suggests that Muslims do not value their own lives: "But, frankly, Muslim life is cheap, most notably to Muslims."

7. questions whether Muslim Americans merit First Amendment protections because they are likely to abuse such protections: "So, yes, I wonder whether I need honor these people and pretend that they are worthy of the privileges of the First Amendment which I have in my gut the sense that they will abuse."

Friday, September 10, 2010

The Unjustifiable Leap from Koran Burning to Rioting

There will always be rude people who go out of their way to insult other people's faiths. They might even do so in ways designed to provoke. (Hopefully this issue will die with a whimper, as the pastor reconsiders his unwise plan of action.)

The question then is how the world should respond to such provocations.

Repudiation, accompanied by clear expressions of support for those who are targeted, strike me as the appropriate response.  Public protest such as marches--as long as it is respectful of other people's faith--is appropriate as well, should one feel so moved. However, violent response is entirely inappropriate. That is an irrational and repugnant reaction to a despicable act. Indeed, a violent response is far worse than the original action on a moral scale.

Perhaps some utilitarians would disagree. They may say that the morality of the burning, if predictably followed by a violent response, must then be presumed to subsume the ill effects of the violence. I would think that the moral guilt of provoking violence should be borne by the person lighting the flame, but that this does not mean that that person is as morally reprehensible as the person engaging in the violence itself.

Wednesday, September 8, 2010

The Upcoming Redistricting Season

This is what Indiana's Fourth Congressional District looks like:

According to an editorial in my local paper, this district shape is unseemly and "stretches the bounds of reason." Those who reside within a district, according to the editorial, "should have more common ground than geography allows the people in this strangely drawn 4th."  But nothing in life is ever quite so simple.

Thursday, September 2, 2010

Puerto Rico's Birth Certificate Controversy

Somehow, you knew it would come to this.  Under a new law, old birth certificates issued by the government of Puerto Rico would no longer be valid after July 1, 2010.  Foreseeing problems with this deadline, the government extended it by three months.  The claim then, as now, is that these birth certificates are prone to misuse and particularly identity theft.

A few days ago, the inevitable happened.  According to a report from the Associated Press, the Ohio Bureau of Motor Vehicles is not accepting the old birth certificates from those applying for a state identification card or a driver's licence.

In fairness to state officials and bureaucrats at the Ohio BMV, the old birth certificates are in Spanish, with translated language in parentheses.  It is also true -- at least as far as my old birth certificate is concerned, that the words "United States" appear nowhere within the certificate.

And yet, this story makes you feel oddly uncomfortable, especially if you happen to be, like me, a citizen of Puerto Rico, born on the island and residing in the continental United States.