Fair Harvard! We join in thy jubilee throng….
….
Till the stock of the Puritans die.
Depending on your view of the Puritans (I rather like them), their stock has now run rather thin … or it still reigns triumphant in Harvard Yard.
What brings me to Harvard is an interesting post by Todd Zywicki that reproduces a letter submitted to the Harvard Crimson by Elliot Marc Davis, a Harvard law student. You really must read the whole thing (if I were information czar, that would be a direct order rather than a request), but the guts of it is this:
The Law School’s non-discrimination policy simply states: “Harvard Law School does not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, gender, sexual orientation, marital or parental status, disability, source of income, military status or status as a Vietnam era or disabled veteran in admission to, access to, treatment in, or employment in its programs and activities. All employers using the facilities and services of the Office of Career Services must comply with this policy.”
Yet in direct violation of this policy, the Law School’s Office of Career Services forwards job opportunities that are available only to certain students on the basis of race, color, or ethnic origin. In just last week’s news update from the Office of Career Services, no fewer than four announcements violate the non-discrimination policy. One diversity fellowship requires that ” [t]he individual [selected] must be a member of a racial or ethnic minority group.” Another fellowship restricts eligibility to “persons who are… African American, Latino, Native American, Alaskan native, Asian or Pacific Islander.”
The non-discrimination policy contains no exception that would permit discriminatory affirmative action practices. Accordingly, the military’s discrimination is held to a tougher standard than any other employer, or so it seems….
Now, attentive readers here with good memories will recall that I made this same point here a couple of weeks ago. There, in discussing the inconsistency between supporting the revocation of Bob Jones’s tax exmption for violating “public policy” but defending Harvard’s attempt to keep its federal money while flouting federal law, I quoted Harvard law prof Laurence Tribe saying he would “hate to see a world” where First Amendment arguments about free association, etc., “became a general blueprint for avoiding the neutral across-the-board application of anti-discrimination rules,” to which I commented:
But, again, how is it possible to take Tribe seriously here since, as a supporter of racial preferences in admissions and hiring, he actually opposes “the neutral across-the-board application of anti-discrimination rules”? Indeed, since all the law schools involved here themselves practice (legal) discrimination in what they believe is a good cause, promoting “diversity,” and invite recruiters on their campuses whose firms and companies do the same, they are standing in a glass house when they throw stones at another institution for engaging in allegedly discriminatory (but legal) behavior to promote what it regards as a good cause, protecting order in the military, especially since both the “don’t ask, don’t tell” policy to which the Solomon critics object and the Solomon Amendment itself are both clearly the “public policy” of the United States.
[UPDATE: In fact, as David Bernstein has just pointed out, “don’t ask; don’t tell” is not just “public policy”; it’s the law, passed by Congress and signed by the president.]
Zywicki supports the thrust of the student’s letter (as, obviously, do I), but in supporting it, and no doubt leaning over backwards to be fair and balanced, he may go a bit farther in making allowances for discrimination than I would. Thus he writes:
The larger point here seems to me to be a sound one. It is not accurate to say that Harvard, or other colleges and universities have a blanket policy opposing discrimination. Rather, colleges and universities routinely balance the goal of nondiscrimination against other educational and social goals. (Leaving aside the question of whether affirmative action should have the moniker “discrimination”). Indeed, the right of universities to undertake this balance as they see fit was one of the central premises of the Grutter case, and one which is captured in the fellowship announcements described above.
And again:
Leaving aside constitutional equal protection questions, Harvard certainly may decide that offering and allowing the advertisement of fellowships that exclude certain groups from eligibility is outweighed by larger educational goals, but that allowing the military to recruit does not offer sufficient educational and social benefits. It is certainly Harvard’s right to balance those policies as they see fit, but that doesn’t obscure the fact that they are in fact balancing nondiscrimination as one of many principles and policies, not applying a blanket principle.
And yet again:
Harvard has the right to balance the policies as they see fit, and to make exceptions to the general principle (or not make exceptions to it) as they see fit.
I’m not sure it’s possible to engage in this debate and totally “leave aside” the question of whether racial preferences deserve the “moniker” of “discrimination or “constitutional equal protection questions.” Moreover, even leaving aside those two issues, in order to justify racial preferences one must also “leave aside” Title VI of the Civil Rights Act, which provides for cutting off federal funds to institutions that discriminate, even though the Congress’s and the Court’ have so far been unwilling to take it seriously.
It is unfortunately true that Grutter protected Harvard’s right to discriminate to a certain degree, in certain circumstances, but even Grutter implied some limits on this right, which, if true, means that even (un)Fair Harvard can’t do everything it would otherwise “see fit” to do.
UPDATE
Writing today about the “petulant” arguments of the law schools trying to keep federal money while banning military recruiters, George Will observed:
… more than four other justices probably share Scalia’s incredulity concerning this implication of the schools’ argument: When an individual or institution gives as a reason for violating the law the fact that he or it wants to send a message, the violation acquires First Amendment protection. By such reasoning, a school barring blacks from campus could say its conduct is infused with an expressive purpose, hence shielded by the First Amendment.
As you all now know, this is not mere conjecture, except that when something very much like this scenario actually occurred — Bob Jones University losing its tax exemption — all the liberal professors were on the other side. Also, as I’ve pointed out, Bob Jones’s argument was not as dramatic as that now made by the liberal professors: Bob Jones was not accused of breaking any law or of “barring blacks from campus.” It’s unacceptable behavior was violating “public policy,” as determined by the IRS, and it claimed not only free speech and association rights but also its right to free expression of its religion.
“As you all now know, this is not mere conjecture, except that when something very much like this scenario actually occurred — Bob Jones University losing its tax exemption — all the liberal prefessors were on the other side”
Except that bob jones has a big difference from this scenario. The discrimination that bob jones practices is a much greater violation of public policy than the forwarding of affirmative action fellowships, or the don’t ask don’t tell policy of the military.
Society is in the middle of discussions of policies of affirmative action and homosexuality. We are not in the middle of discussions of whether it is appropriate to ban interracial dating like bob jones does.
actus – Your confidence that the violation of “public policy” as determined by the IRS of a school policy against interracial dating at a school with very few blacks is somehow a weightier and more serious transgression than the flouting of two federal statutes is quaint. It’s so quaint that it’s almost cute.
“actus – Your confidence that the violation of “public policy” as determined by the IRS of a school policy against interracial dating at a school with very few blacks is somehow a weightier and more serious transgression than the flouting of two federal statutes is quain”
I don’t think that public policy is made by a simple statute — as shown by your example of how ‘don’t ask don’t tell is statute, not just public policy.’ Don’t ask don’t tell is military policy. Its not the policy of how we want society to work or how we want charity to funtion. Anti-discrimination is how we want society to work.
The IRS may have made the determination about what was the public policy being violated. But they weren’t the ones that created the public policy. And there really isn’t the same clarity there as there is with the private treatment of anti-homosexual discrimination or affirmative action in hiring by private employers.
Nor do i think that violations of public policy depend on how many black kids are affected. I wonder why there are so few black kids at BJU. I wonder how many kids who want to go into JAG there are at Harvard. I also wonder if there is anything keeping them from going into JAG.
I think the schools clearly should lose their money for violations of the solomon amendment. I think it should be applied with full force.
I think every university in this country with an AALS accredited law school should have all of its student loans and federal research grants cancelled for the entire university, kicking basically all students and science out of schools nationwide.
The law schools won’t do this. And the white house doesn’t have the balls for that, and instead they’ll just target a few parts of a few institutions. We’ll just have to hang on untill common sense prevails.
“Don’t ask don’t tell is military policy. Its not the policy of how we want society to work or how we want charity to funtion.”
No, it is not “military policy.” It is federal law, enacted by Congress and signed by the president. Even if the military wanted to act like Harvard, or comply with Harvard’s non-non-discrimination policy, it could not, unless Congress and the president changed the law.
Your notion that “public policy” as defined by any exexcutive agency, but especially the IRS, can trump First Amendment speech and religious rights would be frightening if if weren’t so laughable and if courts agreed with you.
Oh wait… in Bob Jones the Court did agree with you. O.K., what I would like to see is Bob Jones reversed. Failing that, it would be interesting to see a conservative president appoint a head of the IRS who would determine that all racial discrimination, including racial preferences, is against public policy and that as a result any foundation (that means you, Bill Gates) and any university that treated individuals of different races differently would lose their tax exemptions.
There are some problems with that that would trouble me, but one of the nice things about such an approach is that actus could not be heard to complain, at least not reasonably and consistent with what he’s been saying here.
“No, it is not “military policy.” It is federal law, enacted by Congress and signed by the president. ”
That’s what I mean. It’s for the military. There really isn’t any public policy about how private organizations are to treat homosexuality.
“Your notion that “public policy” as defined by any exexcutive agency, but especially the IRS, can trump First Amendment speech and religious rights would be frightening if if weren’t so laughable and if courts agreed with you.”
But its not quite ‘defined’ by the IRS. Its defined by our constitution, our courts, our executive branch, and our legislative branch in all of their enactments. Do you think that the IRS was wrong?
First amendmente speech and religious rights still exist. But you don’t get to be a charity and also practice backward racist hate which has been rejected throughout society at all branches and levels of government.
“. Failing that, it would be interesting to see a conservative president appoint a head of the IRS who would determine that all racial discrimination, including racial preferences, is against public policy and that as a result any foundation (that means you, Bill Gates) and any university that treated individuals of different races differently would lose their tax exemptions.”
Oh. They would be clearly wrong because that is not public policy. Our military and others practice affirmative action. The adminstration recently argued in favor of some forms of it. There clearly is not a public policy against AA. I don’t think agencies are so captured by narrow partisanship as you propose as to do something this wrong.
“There are some problems with that that would trouble me, but one of the nice things about such an approach is that actus could not be heard to complain, at least not reasonably and consistent with what he’s been saying here.”
You’re not getting it then.
John,
Actually, I think I have to disagree with you on some very trivial points.
You assert that Grutter protects Harvard’s right to engage in the balancing. I don’t believe it does, necessarily. Grutter stands for the proposition that that States, and hence State universities, can use compelling interest balancing to justify discrimination in special cases (although O’Connor would have likely voted the same way had she been presented with such a scenario). With States, the Equal Protection Clause has more force, and compelling interest analysis has been interpreted to port over into Civil Rights Act doctrine as applied to states (plus, under 11th Amendment and other doctrines of sovereign immunity, Congress must explicitly apply laws, like CRA, to states, otherwise, States are assumed to not be and be above “person” status). With private entities, there is no requirement that they adhere to the Equal Protection Clause – private entities are not subject directly to the Constitution; but they are subject to the Civil Rights Act. Private entities (except in Kelo, and there only through a government) don’t have “compelling interests” that can excuse conduct under the CRA. This indeed creates an irony – and room for future litigation against private schools like Harvard. Of course, Grutter may extend private universities (though not companies) an “academic freedom” “First Amendment” right to make such decisions, but that passage in Grutter is more dicta and certainly not clear in creating a new First Amendment academic freedom right. I oppose the idea of “First Amendment” discrimination by Bob Jones or Harvard because First Amendment rights first devolve to individuals, and universities are not individuals. The same goes for corporations, more generally. So in Harvard’s case, since they are not a State, I don’t think Grutter applies (that’s what I’d argue) at all, and the CRA, which has typically created a class of the so-called “reverse discrimination” suits (I hate that phrase), should apply.
But let me propose another scenario, one that FIRE has used on First Amendment-like claims with private universities infringing on student speech rights. Contract law. If Harvard’s statement of non-discrimination “against any person” forms the basis of a representation to prospective students, then Harvard is bound by that statement through fraud and contract law.
Regarding Bob Jones university, while I would probably think as a private university they have a right to religious and FA expression on the issue of inter-racial dating, they do not have a right to status as a 501c3 organization. The courts didn’t say BJU couldn’t have the policy or expression, only that the consequence of the expression was no federal money (via tax benefit). I see no issue with IRS revocation here – I assume you’re using it as an example for the sake of consistency comparisons. I do agree with you though that its dangerous and foreboding to give the IRS the power to make those determinations, at least as vague as the one it made regarding BJU.
Finally, Harvard’s position is philosophically inconsistent, though it obviously has an associational and FA interest in choosing whether to associate with the US military or not even for inconsistent reasons. It’s interest is that Harvard seeks to promote its political view that the military’s lawful policies are wrong (and that the law is wrong), and it chooses to not to associate associate with the military until that law changes. That is political expression. Harvard’s motivation is that it is at philosophical war with one aspect of current government policy. You’re right though – Harvard has a right to that position but not to the federal money it receives, and it should be willing to pay the price. Lose the federal funding.
Chetly – The only real disagreement I have with anything in your interesting and generally persuasive comment regards Bob Jones, and by extension your remark that only individuals have First Amendment rights. Academic freedom and various forms of associational rights are, ultimately, FA rights, and they are possessed in some instances by organizations, groups, etc.
With regard to Bob Jones specifically, 501(c)3 of the tax code provides that “religious, charitable, or educational” institutions are entitled to a tax exemption. That is not a “right” in the conventional sense, since Congress could revise or repeal the law. But I don’t think the IRS was justified in deconstructing and then reconstructing that statute so that Bob Jones, alone, was required to be religious, charitable, AND educational. It did this by deciding that an organization could not be “charitable” if it violated “public policy.” So? BJU was still religious and educational even if were held not to be charitable. I think this was outrageous, almost a bill of attainder against one institution, and it was a shame the Supremes allowed it to stand.
I thought I had suggested that the balancing latitude Zywicki found inherent in Grutter was too expansive, for the reasons you mentioned. Otherwise, you are certainly correct about Harvard, as a private institution, not being subject to the equal protection clause, etc. (Although as an aside, I recall from the debate over whether the Virginia Military Institute should be required to admit women [it was] that VMI received a smaller proportion of its funds from Virginia than the Harvard Medical School did from the federal government. “Private” has become somewhat more problematical than it used to be.)
“It did this by deciding that an organization could not be “charitable” if it violated “public policy.” So? BJU was still religious and educational even if were held not to be charitable. I think this was outrageous, almost a bill of attainder against one institution, and it was a shame the Supremes allowed it to stand.”
The standard for what is charitable applies to everyone.
The standard for what is charitable applies to everyone.
Yes, and the sun rises in the east, but so what? What the IRS did, and you now support is the exact equivalent of, say, this:
State U. has an official policy that you can be admitted if you are a state resident with a high school diploma OR you are from anywhere with a GPA of 3.5.
You are a state resident, high school graduate, with a GPA of 3.2.
State U. refuses your admission because you don’t have a GPA of 3.5.
Now, based on evidence here, you’d say “Fine. The GPA requirement applies to everyone.”
In short, until the IRS rewrite, “charitable” did not apply to everyone. You qualified for a tax exemption if you were — how many times do I have to quote this for you? — “religious, charitable, OR educational.” That is, since you seem to a bit logic-impaired, you qualified if you were educational but neither religious nor charitable; religioius but neither educational nor charitable; or charitable but neither religious nor educational.
The IRS simply changed the rule because they didn’t like Bob Jones, and Court went along with it (though you should read Justice Powell’s concurrence, which said the revocation was illegal when it occurred but somehow became legal over time).
“The IRS simply changed the rule because they didn’t like Bob Jones, and Court went along with it (though you should read Justice Powell’s concurrence, which said the revocation was illegal when it occurred but somehow became legal over time).”
And the rule applies to everyone. So?
“Now, based on evidence here, you’d say “Fine. The GPA requirement applies to everyone.””
No. It would depend on if they changed the rule for everyone or not. did they? They did in the bob jones case.