Discriminations

The Supreme Court has reversed the Sotomayor-sitting Second Circuit and ruled in favor of Frank Ricci and his fellow New Haven firemen who would have been promoted but for their race. In doing so it rejected the argument of the Obama administration, and favored by the four dissenting Justices (See Footnote 10 of Justice Ginsburg’s dissent, quoted here), that would have vacated the Second Circuit’s decision and remanded the case to the District Court for fact-finding on the city’s intent in refusing to act on the results of its test.

Much of the early commentary understandably concentrates on the likely impact of the Supreme’s implicitly, and in some instances explicitly, repudiating the work of the Second Circuit panel on which Judge Sotomayor sat. See, for example, here, here, here, here, here, and here.

I have just downloaded the nearly 100 pages of opinions and will no doubt have more to say presently. A very quick perusal, however, suggests that the real loser here should be neither Sotomayor nor the City of New Haven but the entire concept of “disparate impact” discrimination, at least as it has been practiced. I have made the point that disparate impact has become increasingly incoherent before — most recently in Eating Its Own Tail, Disparate Impact Itself Has A Disparate Impact — and I strongly suspect that I’ll be making it again after digesting this decision.

Stay tuned....

UPDATE

So far, my favorite comment in any of the opinions today is the way Justice Scalia begins his concurrence:

I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one....

The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result — the question resolved by the Court today — it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. See ante, at 20–21. But if the Federal Government is prohibited from discriminating on the basis of race, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), then surely it is also prohibited from enacting laws mandating that third parties — e.g., employers, whether private, State, or municipal — discriminate on the basis of race. See Buchanan v. Warley, 245 U. S. 60, 78–82 (1917). As the facts of these cases illustrate, Title VII’s disparate impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory....

To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles....

Indeed. Anyone interested in knowing what I think about disparate impact should proceed immediately to read Justice Scalia’s entire dissent.

Meanwhile, one of the reasons I don’t have to rush to comment further on Ricci is excellent posts by others, such as this one by Hans Bader, this comment by Walter Olson, and this post by Ed Whelan, not to mention others I’ll probably cite later.

Anyone want to place bets on how fast the Dems will move to overturn today's decision by statute?

UPDATE II

I hope no one bet against the Dems. As The Washington Times reported,

Members of Congress said they will try to overturn the ruling through legislation, and D.C. Delegate Eleanor Holmes Norton, a Democrat, vowed to introduce a bill when Congress gets back from its July 4 vacation.

[ADDENDUM to UPDATE II: The above was written before I had seen David Nieporent's comment below, pointing to Justice Scalia's dissent. Note to file: Read comments before adding UPDATES.]

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According to new material delivered to the Senate, when Sonia Sotomayor was on the board of the Puerto Rican Legal Defense and Education Fund (now called LatinoJustice PRLDEF), she and two other directors signed a memo that

argued against reinstating the death penalty in New York state, making the case that capital punishment is racist because it is disproportionately imposed on minorities.

Someone on the Senate Judiciary Committee should ask her whether she believes all racial disproportionality is racist. That is, does she believe that disparate impact can be evidence of discrimination, is always evidence of discrimination, or in fact is proof of discrimination.

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U.S. Capitol is too white, say critics

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... people have more money.

WASHINGTON -- The income of Americans soared in May because of the government’s economic stimulus....

Disposable personal income in May -- income after taxes -- jumped 1.6%, driven by the aid package President Barack Obama signed in February to spur the economy....

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Several years ago I discussed on a number of occasions (many of them linked here) controversy over an American Bar Association accreditation standard that virtually requires law schools to employ racial preferences in admissions in order to promote “diversity.” And in that same post I mentioned what might be “warning signals” that college accreditors might require racial preferences in order to “even out” graduation rates.

I was reminded of these older accreditation posts by the recent news, reported today by Insider Higher Ed, that the Southern Association of Colleges and Schools has removed the accreditation of Paul Quinn College, a historically black institution in Texas.

The move by SACS -- which follows years of scrutiny of Paul Quinn and its finances -- is one of several decisions involving historically black colleges. SACS, which has the job of assuring the educational quality and financial stability of the colleges it accredits, operates in a region with most of the nation’s historically black colleges.

At the same meeting where SACS revoked Paul Quinn’s accreditation, the association also placed two historically black colleges on “warning” status: Tougaloo College and Florida Memorial University. And two historically black colleges received good news from the association: Dillard University and Texas Southern University were removed from “probation” status, which is worse than “warning,” but still means that an institution is accredited.

Indeed, if one clicks on any of the states in its jurisdiction conveniently provided on the SACS web site, one finds that historically black colleges are significantly “overrepresented” among those on “probation” or “warning.”

And this, of course, raises a question: if racial preferences are virtually required (and certainly ubiquitous even if not required) in admissions and perhaps, even if sub rosa, in grading and hence graduation, why shouldn’t the accreditation bar be lowered for historically black colleges?

How long will it be before those who see disparate impact discrimination in every racial disparity complain about the colorblind standard — what SACS calls “the common denominator of shared values and practices among the diverse institutions” — employed by all the accreditation organizations?

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Both houses of the Arizona legislature have now approved the Arizona Civil Rights Initiative, which will appear on the ballot in 2010!

If voters approve the measure, Arizona will join the voters of California, Washington, Michigan, and Nebraska, all of whom have amended their state constitutions to prohibit the state from discriminating against, or giving preference to, anyone based on race, ethnicity, or gender.

Once again, everyone owes Ward Connerly and Jennifer Gratz a debt of gratitude for their hard work on this issue.

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Attentive readers will (I hope) have noticed that I’ve not posted much lately. My wife and I have been in California visiting our daughter (who, by the way, has just had an important article accepted by a major journal; more on that some time later), and I’ve fallen behind.

I’ll try to catch up when I can (meanwhile, enjoy your breather), but now that I have an online minute I’d like to point you to the excellent discussions of the Supreme Court’s recent decision on Section 5 of the Voting Rights Act by Hans Bader, Roger Clegg and Todd Gaziano. I’m sure more will come later; watch for UPDATEs.

UPDATE [24 June]

Here’s one of those UPDATEs.

Abigail Thernstrom, vice chairman of the U.S. Commission on Civil Rights and author of the two best books on voting rights, reports that not only did the Supremes not “gut” Section 5, they didn’t even limit it significantly. “The Supreme Court on Monday punted on the most an ticipated case of the year, she writes, “but perhaps that was the wisest move.”

The plaintiffs hoped the high court would declare the provision no longer a legitimate exercise of congressional power under the Fifteenth Amendment. And the court is prepared to address the questions raised by Section 5, Chief Justice John Roberts made clear.

But this case, he declared, could easily be resolved on a narrow, technical matter — so the justices simply granted the Texas district's request for the right to petition to "bail out" from Section 5's coverage.

This fine-tuning of the bailout provision will do little to change the law. The real significance of this case lies in what was foreshadowed....

The decision clearly invites another case that properly frames the core constitutional issues. Should Georgia but not Ohio still be singled out for extraordinary federal oversight? Why Brooklyn, but not Queens? By what logic?

Equally important: When the Justice Department uses its preclearance powers to insist on racially gerrymandered districts, will Section 5 withstand constitutional scrutiny? Safe black districts were arguably a necessity when not even southern white Democrats would vote for black candidates. That is no longer the case.

Thernstrom also persuasively points out that a better Supreme Court opinion “would have driven today’s Congress to “fix” the provision so as to undo the high court action,” at least insofar as such an opinion was based on an interpretation of the statute rather than the Constitution.

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To be fair, my title should be “Gross Coverage,” since I am referring to the sadly typical press coverage of the recently released Supreme Court decision in Gross v. FBL Financial Services (08-441), an age discrimination case under the Age Discrimination in Employment Act.

In a 5–4 opinion written by Justice Thomas, the Court held (quoting from the case’s Syllabus) that

A plaintiff bringing an ADEA disparate-treatment claim mustprove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

The dissenters, let by Justice Stevens, screamed the judicial equivalent of bloody murder, and it is their dissent that is featured in most of the mainstream press coverage of the case. Typical of that coverage is an article in the Los Angeles Times by David Savage, who writes today that

The dissenters, led by the court’s senior justice, John Paul Stevens, described the ruling as “especially irresponsible” and “an unabashed display of judicial lawmaking.”

Savage himself seems quite displeased by the decision, stating in his own voice (no covering “experts said” here) that

[b]ecause workers claiming such discrimination almost certainly will not be present while their employers discuss laying them off or demoting them, analysts said, it will be extremely difficult to obtain hard evidence that age was the key factor.

He does, however, go on to quote several experts making the same point, as well as Senate Judiciary Chairman Leahy, who said that the five Justices in the majority “acted to disregard precedent and ignore the plain reading and common understanding of the statute that Congress passed to protect Americans from discrimination based on their age.”

Really? Did the majority actually disregard precedent and ignore the plain meaning and common understanding of the text? I don’t think so, but I also don’t think that most readers of Savage’s article, or a similar one by Mark Anderson in a publication from which one expects better, are given enough information to make that judgment for themselves. According to Savage, for example,

The 5-4 decision reversed a long-standing rule. Many federal appellate courts had decided that if a worker could show age was one of the factors in a layoff or demotion, then the employer was required to prove it had a legitimate reason for its action apart from age....

In discrimination lawsuits involving what lawyers call “mixed motive” cases, a worker previously might have had a valid claim of discrimination if age or another prohibited factor, such as race, was one of the motivations behind a firing or demotion.

The Court overturned “a long-standing rule”? How could they do that? Does the majority simply not like old people? The only clue in Savage’s article about how the Court could have undertaken, presumably on its own initiative or because of its own policy preferences, such a massive reversal of rule and precedent is the following:

Thomas acknowledged that Congress and the Supreme Court had authorized this approach [shifting the burden from plaintiff to defendant in “mixed motive” cases], but he said it could not be applied to age discrimination cases.

“The burden of persuasion does not shift to the employer,” he said, “even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”

In 1991, Congress amended the law covering discrimination on the basis of race, sex, religion and national origin to allow mixed-motive claims. It did not revise the age bias law. Thursday’s majority said that age, therefore, should be treated differently.

But wait a minute. Savage has Thomas “acknowledging” something that he not only does not acknowledge but specifically denies — that Congress and thus the Court have in the past “authorized” this burden shifting in age discrimination cases. It might have been useful, in short, to quote a bit more from Thomas’s Opinion such as the following from pages 5–6 (citations omitted):

Petitioner relies on this Court’s decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA....

This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII ... , even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088.

We cannot ignore Congress’ decision to amend TitleVII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.

Assuming that Thomas and his majority are accurate in stating that the Court “has never held that this burden-shifting framework applies to ADEA claims,” then exactly what precedent does Sen. Leahy claim they ignored? When Savage writes, “In discrimination lawsuits involving what lawyers call “mixed motive” cases, a worker previously might have had a valid claim of discrimination if age or another prohibited factor, such as race, was one of the motivations behind a firing or demotion,” what previous Supreme Court age discrimination cases does he have in mind. Where is the “long-standing rule” written that Savage says the Court “reversed.”

Moreover, since Savage quoted with evident approval Sen. Leahy’s charge that the majority ignored the “the plain reading and common understanding of the statute that Congress passed,” it would have been helpful to present the majority’s take on that question, such as the following from page 7–8:

Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not....

The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29
U. S. C. §623(a)(1) (emphasis added [in majority opinion]).

The words “because of” mean “by reason of: on account of.” 1 Webster’s Third New International Dictionary 194 (1966).... Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act.... To establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision....

Now it is entirely possible that the “mixed-motive” burden shifting framework obviously preferred by Sen. Leahy and the four dissenters (and I think quite obviously by journalist Savage) is better than the original version left in place by Congress in 1991. This would not be the first time that legislation Congress did not pass, wording that it did not use, is better than what it did do. But it is not the Court’s job to substitute its policy preferences for what Congress actually did or did not do, and it ill behooves Justice Stevens to accuse the majority of “an unabashed display of judicial lawmaking” for its refusal to engage in judicial lawmaking. As Justice Thomas noted in Footnote 3 (page 8) of his opinion:

JUSTICE BREYER contends that there is “nothing unfair or impractical” about hinging liability on whether “forbidden motive . . . play[ed] arole in the employer’s decision.” Post, at 2–3 (dissenting opinion). But that is a decision for Congress to make [citation omitted]. Congress amended Title VII to allow for employer liability when discrimination “was a motivating factor for any employment practice, even though other factors also motivated the practice,” 42 U. S. C. §2000e–2(m) (emphasis added), but did not similarly amend the ADEA.... We must give effect to Congress’ choice.

I think one of the main reason so many citizens view judges as super-legislators is that so many journalists write about them as though they are super-legislators. (Another, no doubt more important, reason is that so many judges and legislators, like Sen. Leahy, actually want the courts to be super-legislatures.)

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“The reckless fiscal policies of the past have left us in a very deep hole,” Obama said last week. “And digging our way out of it will take time, patience and some tough choices.”

Given the enormous deficits and debt Obama is determined to multiply and increase, apparently one of those “tough choices” is not to stop digging.

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Anyone who wants greater knowledge of the facts of Ricci v. DeStefano, the New Have firefighter case, should read Stuart Taylor’s latest column and the deeply informed comments (here, here, here) of “Guest In the Know” on Jonathan Adler’s recent post, “What Really Happened” in Ricci.

ADDENDUM

A highly satisfying additional reason for reading the comments by “Gust in the Know” is to see “Cobra,” our frequent commenter from far left field, get exposed and exposed and exposed for his uninformed (though littered with unpersuasive cites), ideologically rigid and predictable assertions by someone who actually knows what he or she is talking about rather than merely opposing opinions, which is what usually happens here (and I’m including my own responses in this generalization).

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In his widely-read “In The Loop” political insider gossip column in today’s Washington Post, Al Kamen notes that Sonia Sotomayor,

with more than six years of district court and more than 10 years of appeals court experience, goes before the committee with more years of total experience in the federal courts than any Supreme Court justice since . . .?

Ah, you guessed it: since the legendary Justice Horace Harmon Lurton, who served for 17 years on the U.S. Court of Appeals for the 6th Circuit before going to the high court in 1910. Lurton, a former Confederate soldier whose photos remind some of White House counselor David Axelrod, served only four years before he died, so he didn't leave a substantial jurisprudential footprint.

Given the breadth and depth of Sotomayor’s judicial experience, and the numerous opinions she has written or joined, I think it is in order for me to repeat the invitation I extended to her in my recent post, Is Sonia Sotomayor “A Wise Latina”?, an invitation that I will now offer to all of her supporters as well:

Why not simply ask Judge Sotomayor to point to her own opinions from her many years on the bench that are “better” because of her Latina physiological or cultural inheritance? Far from regarding such a question as out of order, she has virtually invited it. In The Speech (and subsequent law review article that printed it), after all, she herself said:

I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Fine. So Sotomayor should show us where those differences have actually led her to make better decisions than a white male could make.

If she can’t point to examples from her own voluminous opinions that, because of her own Latina “richness of experience,” are “better” than those that could be written by “a white male who hasn't lived that life,” she should apologize to all the white male judges with whom she has served, and the rest of us as well.

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[CORRECTION: In Release 1.0 of this post, which should have remained in Beta, I misidentified “Oren,” a commentator on Jonathan Adler's post with whom I took issue, as Volokh Conspirator Orin Kerr. Almost equally embarrassing, I also misspelled Adler's name. In my dotage it's getting harder to tell the difference between typos and simply being dumb. I think both of these errors were of the latter variety.]

Jonathan Adler, in a Volokh Conspiracy post on Anti-Anti Sotomayor, argued that “it is inaccurate and unfair to argue, on the basis of this and other speeches, that Sotomayor is a ‘racist’” and that “calling her a ‘racialist is just as bad.” To acknowledge, Adler continues, “that ethnic background and personal experience can and should influence judicial behavior, even while disparaging the ideal of judicial objectivity, is not to embrace racial bigotry.”

I think Adler is right on “racist” but wrong on “racialist,” as I argued in a comment to his post:

Describing Sotomayor as a “racialist” is not at all the same thing as an accusation that she “embrace[s] racial bigotry.” A racialist is simply someone who believes in racial essentialism, that there is a substantive content to race that goes beyond mere pigmentation and deeper than such cultural artifacts as tastes in food or music. It is fair, I believe, to describe Sotomayor as a racialist not so much because of her “wise Latina” sentence but because of an even more dramatic sentence that introduced the paragraph that her “wise Latina” belief concluded:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

Someone who is comfortable with “inherent physiological of cultural differences” is a racialist. (And what, by the way, is the difference between an inherent cultural difference and a physiological difference?) [I have also made these points here, here, and here.]

Adler’s argument that Sotomayor has done no more than “acknowledge that ethnic background and personal experience can and should influence judicial behavior” is a common refrain among those who think Sotomayor’s critics have gone overboard. Commentator “Oren” (NOT Volokh Conspirator Orin Kerr) makes the same point in a reply to my comment to Adler’s post:

What if I don’t believe in racial essentialism as an inherent quality of people of a particular race but nevertheless believe that the experience of growing up latino/african american/vietnamese/... , including the social constructs of those communities, plays a huge role in how one forms basic notions of society and, by extension, law and government.

Had Sotomayor been adopted by a middle-class white family in Iowa (or the children of that family adopted by her parents), I would have to say that the manner, community and environment in which the child was brought up vastly outweighs any essential racial qualities, if they even exist.

To me, this seems entirely uncontroversial — our life experiences shape the way we are and, as an empirical matter that I believe is indisputable, children of different races experience drastically different upbringings. Does that make me a racialist? I don’t think so....

Re Oren’s first point, I would say it’s clear that he isn’t a racial essentialist, but it’s not so clear that Sotomayor, given her easy acceptance of “inherent physiological” racial and ethnic qualities, isn’t. Re his second, I agree that the view that we are shaped by our “life experiences,” etc. is “entirely uncontroversial,” and if that’s all Sotomayor had said critics like me wouldn’t be harping on her comments.

I also think, however, that there’s a larger issue here, the argument that ethnic chauvinism is as American as apple pie. This argument was made nicely by my old and good friend, Leo Ribuffo, a history professor at George Washington, in a May 30 posting on the conservative-libertarian history list:

Many conservatives appear to have become so obsessive about the so-called culture wars of the past two decades that they are unable to recognize “old fashioned” New Dealish ethnic politics when it is staring them in the face. The extraordinary increase in the number of Roman Catholic federal judges during the 1930s was certainly not caused by a sudden increase in the aggregate I Q of Catholic lawyers starting on inauguration day 1933. Consider in particular the case of Justice Frank Murphy, a man of slim legal qualifications, who owed his Supreme Court seat to his religion, his “empathy,” and his recent defeat for re-election as governor of Michigan. Murphy’s empathy did him credit since he was more skeptical than his more learned brethren of the wartime detention of Japanese-Americans. Sotomayor’s “wise latina” remark was the kind of bland ethnic posturing that has been standard fare in American politics for a very long time. New Deal Boston Mayor James Michael Curley would undoubtedly consider her too soft on WASPs. In short, as Randolph Bourne observed in the 1910s, what we now call multiculturalism IS the American form of nationalism. Even Newt Gingrich, who actually understands the New Deal, knows that even if he can’t bring himself to admit it at the moment.

Andrew Lazarus, in a comment on Adler’s post, was presumably attempting to make a similar gotcha! point when he wrote:

OMG, Justice Alito is race-obsessed. Via Yglesias, I learn of Justice Alito’s speech “Reflections on growing up as an Italian-American in New Jersey”.

To which I replied:

I haven’t been able to find the text of this speech. Thus it would be helpful, and relevant to this debate, if Lazarus, Yglesias, or someone could provide some quotes from it where Judge Alito stated his belief, or even hope, that someone fortunate enough to have grown up Italian or Italian-American (whether their Italian qualities were cultural or physiological or inherited cultural) could, as a judge, make “better decisions” than non-Italians.

To my friend Leo Ribuffo and others who claim that Sotomayor’s critics miss the point that she is merely a modern exponent of “‘old fashioned’ New Dealish ethnic politics,” I would reply that it is they who are “unable to recognize” a crucial difference between modern “multiculturalism” and that preached by Randolph Bourne et al. and practiced by all the urban machine pols in New Deal days: the laws passed in the wake of the civil rights movement, and the invigorated consensus in favor of what Myrdal called “the American creed,” i.e., the principle that individuals here have a right to be treated by the state “without regard” to race, etc., made much of what had been standard operating procedure in New Deal America, and before, both illegal and widely regarded as morally wrong.

I am of course aware that most people on the left these days, and even more in academia, the mainstream media, and similar precincts (whether or not they see themselves as on the left) have rejected that principle, but all available evidence tends to confirm that a substantial majority of Americans still accept it, some of us fervently. (See the recent, dramatic poll discussed here.)

In fact, I believe that even many of those who support the sort of multiculturalism mouthed by Sotomayor, and the racial preference policies that flow from it, on some level accept the without regard principle themselves, or at least are unwilling to admit forthrightly that they have rejected it. I have argued here too many times to cite that if preferentialists really, really believed what they preached, they would have long since demanded the repeal of the civil rights laws that race preferences flout. They, of course, don’t do that.

For example, just a couple of weeks ago I wrote to a friend:

If you really believe that race should no longer be treated as a special, protected category, that it is perfectly legitimate to distribute benefits and burdens based on race, why not end our current hypocrisy on the issue, not to mention endless litigation, and simply repeal all the civil rights legislation whose text (accurately reflecting the purpose and intent of its drafters) requires that people be treated “without regard” to race? (See Kennedy and Johnson Executive Orders on Affirmative Action, 1964 Civil Rights Act, etc.) It would not be necessary to repeal or amend the 14th Amendment since the Court has already proved itself more than capable of interpreting “equal protection” to allow racial preference. Any diversiphile not willing to do that, it seems to me, is a hypocrite.

Or again:

I’ve argued a number of times that if proponents of racial preferences believed their own argument — that it is not only allowed but almost mandatory to discriminate on the basis of race in order to promote any number of worthwhile goals (“diversity,” compensation, “inclusion,” representation, etc.) — they would demand the repeal of the various civil rights laws, especially the Civil Rights Act of 1964, that bar discrimination by insisting that, as Title 42 U.S.C. 2000d puts it,

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

No person, not “no black person” or “no minority person.”

And again:

Finally, ask yourself this: since racial preferences are incompatible with the principle animating the civil rights acts, i.e., that every individual has a right to be treated “without regard” to race, creed, or color, would you be willing to repeal the civil rights laws in order to make racial preferences indisputably legal?

From 2006:

How many preferentialists would be willing not only to sacrifice civil rights laws to preferences — after all, they’re already doing that every day — but to admit that the “without regard” principle should not simply be disregarded but repealed?

And to those who think discrimination against Asians and whites is no worse than discrimination in favor of legacies:

Discrimination on the basis of race or religion is simply not the same as discrimination on the basis of athletic ability or legacy status. Anyone who supports racial preferences logically should call for the repeal of all laws banning racial discrimination.

There are more, going back to 2003, but you get the idea. Besides, even modern (or postmodern) multicultists are not supposed to believe that one culture (even if it is inherited, as Sotomayor seems perfectly content to believe hers is) is “better” than another. But then, maybe Ribuffo et al. are right, since that’s just the sort of thing almost everyone in Randolph Bourne’s America believed, just as it was conventional wisdom in the ethnic confederacy of the New Deal Democratic Party.

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From The New Republic, June 11:
How The Gop Lost Its Edge On National Security, by Ruy Teixeira

From Rasmussen Reports, June 8:

For the eighth straight month, Republicans lead on national security. The GOP now holds a 51% to 36% lead on the issue, up from a seven-point lead in May. They also lead on the war in Iraq 45% to 37%, after leading by just two points in May and trailing the Democrats in April.

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In a long series of articles the Chicago Tribune has ignited a major firestorm over preferential admissions at the University of Illinois. Not the sort of preferential admissions we usually follow here, but preferential admissions nevertheless. As summarized in the Chronicle of Higher Education,

The articles, which examined university e-mail and records dating to 2005, detail the existence of a “Category I” list at the university for applicants who have been recommended by lawmakers, trustees, or other politically connected people. This year, about 160 high-school students landed on the list out of 26,000 applicants, according to the Tribune. About a quarter of those students were denied admission, and many of those who were admitted appear to have gained admission in their own right.

These preferences are thus analogous to preferences extended to legacies, the only difference being that these “Category I” students showed their foresight by choosing to be born to influential politicians and other movers and shakers rather than university alumni.

The demand for special help getting into the U of I has been sparked by the University’s increasing selectivity. As the Tribune noted recently,

In 1984, nearly 14,000 students applied for roughly 6,000 freshman spots on the Urbana-Champaign campus, few students from outside Illinois enrolled and high school graduates with decent grades had a good shot of getting in.

Today, 26,000 students are bidding for 7,100 spots, non-residents make up a growing percentage of the freshman class and applicants across the board have more impressive academic credentials than ever before, said Stacey Kostell, director of admissions....

At the U. of I., the influx of out-of-state students has [also] resulted in a lower acceptance rate for Illinois students, Kostell said. In 1989, non-residents made up 7 percent of the freshman class; in 2008, they made up 17 percent.

As the Chronicle of Higher Education’s Peter Schmidt pointed out in his book, Color and Money, and most recently on his blog,

the University of Illinois is hardly alone in systematically lowering the bar on behalf of applicants with political connections. College lobbyists in state capitals say they must routinely accept requests to grease the skids for certain applicants from the state lawmakers that their institutions rely on for funds. College lobbyists in Washington similarly field requests from members of Congress to help applicants who might not gain admission on their own.

Moreover, Schmidt has a nicely revealing reminder of the links and similarities among various preference programs.

Two of the university administrators who oversaw the admissions practices examined in the Tribune investigation--the current president of the University of Illinois, B. Joseph White, and the former chancellor of university's Champaign-Urbana campus, Nancy Cantor--had maintained a similar mechanism for helping favored applicants circumvent merit-based admissions in their previous positions at the University of Michigan at Ann Arbor. Under the point-based undergraduate admissions system ultimately rejected by the U.S. Supreme Court in its 2003 Gratz v. Bollinger decision, Michigan reserved the right to award any applicant a 20-point bonus--the equivalent of the different between a 3.0 GPA and a 4.0 GPA--on its 150-point scale.

Many readers will recall that the University of Michigan also awarded 20 points for “membership in an ‘underrepresented’ racial or ethnic minority group,” until the Supremes required it to achieve by stealth and subterfuge what it had been doing openly. There is something about rewarding the offspring of the politically connected or big donors that strikes almost everyone as unfair, and there is also substantial opposition to legacy preferences, but sometimes the grounds for this opposition is not clear. For some it is a principled devotion to pure academic merit, but for others the reasons for their opposition (other than they are theirs don’t benefit) are more difficult to discern.

Long-time readers will recall that I have been on a campaign for years objecting to the false equation of all forms of preference. For example, even before Gratz and Grutter had been decided I criticized the New York Times for “continuing [its] tradition of equating racial discrimination with other, comparatively trivial forms of discrimination,” quoting a Jacque Steinberg article on the unfairness of legacy admissions:

Now that critics of affirmative action have persuaded the Supreme Court to consider whether black and Hispanic applicants are taking the rightful spots of more-qualified whites, some supporters of race-conscious admissions are mounting a counteroffensive. They complain that it is the preferential treatment afforded some applicants because of their parents' wealth or college affiliation that is unfair.

So, supporters of race preferences argue that discrimination in favor of legacies or big contributors is unfair but racial discrimination is not unfair. This will give philosophers of fairness quite a bit to work on over the next generation as they create clever arguments to support this bizarre view.

I have not read all the Chicago Tribune articles on the “clout” controversy, but in the ones I did read there was, oddly, no mention of the extent of race-based special treatment in admissions. An article yesterday the Tribune noted that

The University of Illinois has refused a request by the Chicago Tribune for test scores and grade-point averages of applicants who appeared on its admissions clout lists, saying the release would violate privacy rights even if the students are not named.

Insofar as the objection to “clout” preferences is based on merit, i.e., on opposition to less qualified students being admitted, then the Tribune should also be pressuring the University to release test-score and grade point averages of its entering class broken down by race and ethnicity. If it did, I’m sure the University would engage in the same stonewalling all institutions do when this data is sought. (See, for example, the California Bar Association’s refusal to release privacy-protected data to researchers.)

Yesterday the Tribune reported that

Gov. Pat Quinn will appoint a panel Wednesday to investigate University of Illinois’ admissions practices, stepping into the controversy nearly two weeks after the Tribune first reported the existence of a clout list for well-connected applicants....

“This is a troubling situation. Admission to this great university should be based on merit, never on clout,” Quinn said in a statement provided to the Tribune. “This Commission is charged with investigating claims of such special treatment and making sure any and all problems are rooted out and corrected.”

If the Governor really believes that admission should be based only on merit and that all “special treatment” should be “rooted out and corrected,” he will direct his commission to investigate “any and all” special treatment, including preferences based on race and ethnicity. And if the Chicago Tribune believes that all applicants have as much a right to be treated without regard to race as they do to be treated without regard to the power or influence of their parents, it will insist on a thorough investigation of all special treatment programs at the University.

Posted by John Rosenberg at 8:41 AM | Permalink | Say What? (2) | TrackBacks (0)

Drudge is reporting that the gunman who killed the security guard at the Holocaust Museum is an “89 Year Old White Supremacist” and also that “Obama's Former Pastor Resurfaces: ‘Them Jews aren't going to let him talk to me ....”

The far left and far right, it seems, still have something in common. I suspect, however, that their harmony isn’t quite what Obama meant by bringing us all together....

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IN THE MAIL: From Abigail Thernstrom, Voting Rights — And Wrongs: The Elusive Quest for Racially Fair Elections. I’ve started reading this, and it is superb. (Although I should say “re-reading,” since an old professor of mine once observed that scholars never admit to reading anything; they always re-read.)

Posted by John Rosenberg at 3:44 PM | Permalink | Say What? (0) | TrackBacks (0)

I pointed out, here, the incredible silliness of Sonia Sotomayor’s 1996 pronouncement in a speech to Princeton students that “in Spanish we do not have adjectives. A noun is described with a preposition.”

Now the grammar of this self-taught grammarian has been noted on National Review Online’s Bench Memos. Matthew J. Franck asks, “what the heck is the word ‘Española’ in the title ‘Diccionario de la Lengua Española’ except the Spanish adjective ‘Spanish’”?

“What hit me,” Franck continues,

when I saw Sotomayor boasting about her care about her writing was that she still needed to do some work. After all, “I blister,” she says, when she sees writing errors. Didn’t she mean “I bristle”? That would be a standard metaphor for what she is trying to say, while “blister” is either a metaphorical stumble or the really daring effort of a supremely confident writer. I vote for “stumble.”

And Ed Whelan notes the Spanish adjective gaffe in his post, A Judge of Latinicity of Wisdom of Grammar?, a title that is a take-off on her comment in the speech that I mentioned:

When my first mid-term paper came back to me my first semester, I found out that my Latina background had created difficulties in my writing that I needed to overcome. For example, in Spanish, we do not have adjectives. A noun is described with a preposition, a cotton shirt in Spanish is a shirt of cotton, una camisa de agodon, no agondon camisa.

Ed generously linked to my post, even though he hadn’t seen it until his was nearly finished.

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In the Washington Post this morning Ruth Marcus attempts to rescue Sonia Sotomayor from her decision to deny Frank Ricci, the white New Haven firefighter, the promotion he had earned. Sotomayor is not a “quota queen,” she argues, because the real culprit is disparate impact law itself. “If the appeals court got it wrong,” she writes, the reason is not Sotomayor’s devotion to quotas but rather “in the intricate minuet dictated by federal anti-discrimination law.”

Under federal anti-discrimination law, employers (here, the city of New Haven) can be found liable for discrimination even in the absence of evidence that they intended to discriminate. If an employment practice (here, a test) appears neutral but has a “disparate impact” on minorities — if it is “fair in form, but discriminatory in operation,” in the words of a 1971 Supreme Court ruling -- the employer must justify the need for the practice. (Chief Justice Warren Burger wrote for a unanimous court.) Even then, the employer could be subject to liability if there is a less problematic alternative.

I, too, have just argued (here) that disparate impact law often produces discriminatory results, that in effect disparate impact itself often has a disparate impact. My problem with Marcus’s column, and why it’s probably not right to say that she regards disparate impact law as the real culprit in New Haven, is that she seems all too willing to regard the unfairness visited upon Frank Ricci et al. as an acceptable price to pay to keep the disparate impact standard alive.

And let there be no doubt: Sotomayor herself is an avid advocate of disparate impact. If she has her way, there will be many more Frank Riccis in our future.

Posted by John Rosenberg at 8:35 AM | Permalink | Say What? (2) | TrackBacks (0)

It is often said that success has many fathers but failure is an orphan. Our liberals, however have reversed this truism.

On The Weekly Standard’s blog today Michael Goldfarb makes an excellent point (HatTip to Robert VerBruggen):

Sotomayor’s supporters — most of whom support racial preferences — insist that Sotomayor is so smart and capable she would have succeeded regardless of any affirmative action policies. And maybe she would have, but it’s clear she never got the chance. Sotomayor’s nomination to the Supreme Court is precisely the kind of outcome liberals were hoping for when they set up a system of preferences. And it is precisely the outcome [then-Princeton president William] Bowen was hoping for when he implemented a system of preferences. But now that that outcome has been achieved, liberals don’t want to take any credit for their success. It’s a very odd thing to see a social policy become orphaned at the moment of its greatest triumph.

Odd indeed, but not the first time liberals have done this. They also orphaned a social policy triumph when, after the success in the mid-1960s of their campaign that began in the 1830s to have colorblind equality written into the law, they abandoned their offspring and embraced the antithesis of colorblindness, racial preference.

Posted by John Rosenberg at 11:20 PM | Permalink | Say What? (2) | TrackBacks (0)

On the surface the disparate impact theory of discrimination seems plausible enough (even if not ultimately persuasive) — why shouldn’t any policy or practice that has a disproportionately adverse impact on one racial or ethnic group be prohibited unless a very, very strong justification for it can be produced? In practice, however, as applied, it often amounts either to a lowering of standards for everyone (as when employers are prevented from using tests to measure qualifications for hiring or promotion) or to being no more than a fancy lawyer-created artifice for plain old-fashioned disparate treatment discrimination. When it does this — what I’m referring to here as eating its own tail — disparate impact law itself may be “fair in form, but discriminatory in operation,” as the Supreme Court put it in 1971 when it ratified holding employers liable for “discrimination” they did not intend.

Take New Haven (no, you take New Haven; I’ve already lived there and had all I can take). There is something fundamentally unbalanced and unfair about its legal claims in Ricci v. DeStefano, even beyond the obvious unfairness of Ricci and the New Haven 18 not being promoted because they were of the wrong race. What New Haven and its friends argue in its defense is that the city did not discriminate against Ricci et al. at all, and most especially not at all because of their race. Its motivation, the city argued, was simply to avoid a disparate impact lawsuit it feared facing from the black firefighters if it had promoted a cohort of high-achieving test-passers that included no blacks.

For its part the Obama administration agreed, through the argument of its Solicitor General, that the central issue in the case is the intent of the city in ignoring its test results and denying promotions to Ricci and his fellow hue-impaired plaintiffs. To determine this intent, the administration has urged the Supremes not to decide the case now on its merits but to remand it to the district court for fact finding about the city’s intent. (Let’s leave aside for now the question of whether there is a relevant difference between refusing to promote Ricci et al. because of fear of a disparate impact complaint from black firefighters, which on the city’s and the administration’s view would be legal, and refusing to promote them because all [or too many] of them are white, which everybody agrees would be illegal.)

There is something approaching a Catch-22 aspect of New Haven’s argument here. It argues that promoting Ricci et al. based on a test on which no blacks scored high enough to be promoted would expose it to a disparate impact lawsuit from black firefighters. And in such a lawsuit, it is important to note, because of the rules of the disparate impact game the city’s non-racial, non-discriminatory intent would be useless as a defense. The only thing that would matter is the racial effect of using the test, assuming the test was sufficiently job-related. But when the white (and one Hispanic) firefighters complain of discrimination because the city refused to honor the results of its test, they must prove a nefarious intent! How is that fair?

Moreover, the city’s argument that its decision was not discriminatory because no one was promoted has a foul smell to it. It reeks of the old segregationist argument that closing a municipal swimming pool to avoid integration and banning interracial marriages are not discriminatory because the pool closing and the interracial marriage ban apply equally to all races (as I argued here).

There is also something ironic, or worse (dare one call it hypocritical?), about the fixation on intent in Ricci by those who believe in pervasive but cleverly disguised “structural racism,” who are thus the most ardent defenders of disparate impact, and who regard civil rights enforcement without disparate impact as being akin to riding a bicycle without wheels. They emphasize intent and thus contradict themselves with their Ricci strategy, I believe, because they recognize how that case threatens to reveal the double-standard inherent in many disparate impact cases, that it threatens to blow down the whole house of cards of disparate impact. To what now passes for the civil rights movement and its allies in academia, the media, and now the White House, in short, disparate impact is more than a litigation strategy based on a redefinition of discrimination. It is integral to the entire “diversity” strategy of the affirmative action agenda.

Shelby Steele recognizes this clearly, and makes the argument better than I have, in his scathing indictment today of President Obama for nominating Sonia Sotomayor to the Supreme Court. After a penetrating discussion of how the “almost perfect predictability” of her nomination is a continuation of the very “cardinal sin of identity politics” that people thought they were rejecting in voting for Obama, Steele reprises his theory of black leaders as either bargainers or challengers.

Bargainers, he writes, make a bargain with white society: “I will not ‘guilt’ you with America’s centuries of racism if you will not hold my minority status against me.”

A challenger, by contrast, is “someone who presumes that whites are racist until they prove otherwise by granting preferences of some kind to minorities,” and Sotomayor “is the archetypal challenger.” (This is not the place for me to argue with Steele, but I think on this point he exaggerates the difference between bargainers and challengers by omitting an implicit codicil to the bargain he describes: “... and the way for you to prove that you do not hold my minority status against me is to give me preferential treatment because of my minority status.”)

Challengers see the moral authority that comes from their group’s historic grievance as an entitlement to immediate parity with whites — whether or not their group has actually earned this parity through development.... This creates a terrible corruption in which the group’s historic grievance is allowed to count as individual merit. And so a perverse incentive is created: Weakness and victimization are rewarded over development. Better to be a troublemaker than to pursue excellence.

Sonia Sotomayor is of the generation of minorities that came of age under the hegemony of this perverse incentive. For this generation, challenging and protesting were careerism itself. This is why middle- and upper middle-class minorities are often more militant than poor and working-class minorities. America’s institutions — universities, government agencies, the media and even corporations — reward their grievance. Minority intellectuals, especially, have been rewarded for theories that justify grievance.

Sotomayor’s nomination, and the intense debate over Ricci that it has provoked and amplified, thus reveal the high stakes of this debate over disparate impact, for it is there, Steele concludes, that “we come to Judge Sotomayor's favorite such ingenuity: disparate impact.”

In the now celebrated Ricci case the city of New Haven, Conn., threw out a paper and pencil test that firefighters were required to take for promotion because so few minorities passed it. In other words, the test had a disparate and negative impact on minorities, so the lead plaintiff, Frank Ricci — a white male with dyslexia who worked 10 hours a day to pass the test at a high level — was effectively denied promotion because he was white. Judge Sotomayor supported the city’s decision to throw out the test undoubtedly because of her commitment to disparate impact — a concept that invariably makes whites accountable for minority mediocrity.

But now consider this: what if the complaint of Ricci et al. were treated as a disparate impact claim? (I've made this point before, here .) And why shouldn’t it be? If using a test that disproportionately disadvantages a racial or ethnic group risks a disparate impact suit, why shouldn’t not using a test that disproportionately disadvantages a racial or ethnic group risk an identical suit? Just as honoring the New Haven test’s results would have led to the promotion of no blacks, just as surely not honoring the test’s results did in fact lead to the failure to promote only whites (and one Hispanic) who would otherwise have been promoted. I would pay a not inconsiderable fee to read the briefs and listen to New Haven’s arguments in such a lawsuit, to hear it reply, as it must, that not honoring its test’s results was a “business necessity.”

In the real world, as revealed clearly in New Haven, disparate itself is the culprit. A concern for disparate impact ... has a disparate impact. If you think I exaggerate, give me a list of cases where employers have been held liable for policies or practices that had a disparate impact on Asians, whites, or other non-preferred minority groups.

Posted by John Rosenberg at 9:23 PM | Permalink | Say What? (0) | TrackBacks (0)

Recently the Chronicle of Higher Education ran an article noting that “Supreme Court Nominee Was on the Side of Minorities in Key Cases,” one of which supported “an individual student who challenged a grading policy as discriminatory.”

In that case, Tolbert v. Queens College, the trial-court jury had found that the college had discriminated against a black graduate student on the basis of race by failing him on his final examinations, while giving Chinese students who spoke English as a second language more “slack” in completing their exams. The trial-court judge reversed the jury’s verdict, but the Second Circuit appellate panel ruled that there was strong-enough evidence to sustain the original verdict. Judge Sotomayor did not write the opinion in that case.

Tolbert, it turns out, is a fascinating case. Derek Tolbert was a black teacher in the New York City public schools who attempted to get a Master’s degree in Media Studies at Queens College. After failing the comprehensive exam, he sued the college and several professors for racial discrimination (whom I’ll call “the college”). The college sought summary judgment on several grounds — among them, that the exam was graded blind, so that the professors did not know which one was Tolbert’s; that “cutting slack” for several Chinese students on their grammar and use of language did not discriminate against Tolbert; that Tolbert refused an offer to take the exam again — but the request was denied. “The issue for this Court,” the trial judge held,

is not whether or not it would agree with how this exam was graded; it’s whether the school has established ... different criteria for Chinese E.S.L. students than it has for others and whether that’s based in part on the race of those individuals or their ethnicity.

I think it may be a very weak case for plaintiff, I have to say that, but I’m not sure I can grant summary judgment. A whole lot has to be resolved from hearing these people. It may very well be that the jury is totally persuaded that the blind nature of this exam couldn’t have penalized Mr. Tolbert at all, but I don’t think I can grant summary judgment.

The college appealed, and a panel of the Second Circuit upheld the denial of summary judgement by a 2 –1 vote and sent the case back for trial.(Judge Sotomayor was not on this panel; she was on a later one that the Chronicle should have cited.) The majority agreed with the district court, stating that

the [“cutting slack”] statements attributed to Liebman by Tolbert ... could be interpreted by a rational factfinder as reflecting a grading policy designed to give preferential treatment to certain students at least in part because of their ethnic background. Appellants do not even remotely suggest that they would be entitled to qualified immunity if, in grading the examinations, they discriminated on the basis of race or ethnicity.

Dissenting, Judge Milton Pollak found Tolbert “a troubled individual” who

brought this suit because he was not granted a Master’s Degree in Communications. He did not submit evidence that he was entitled thereto or that he failed to receive the degree because of illegal discrimination against him as a Black-American....

The district court lost sight of the relevant issue in this litigation, namely: did the exams submitted by the plaintiff satisfy the requirements of the donors of the degree? The school’s views thereon, not those of the plaintiff, were controlling. The adequacy of the candidate’s responses to the questions is not a matter for the determination of a jury, which cannot award the school’s degree. The plaintiff’s self-proclaimed sufficiency in English expression and grammar, as contrasted with that of unidentified Chinese candidates for whom the professors allegedly cut slack in connection with their English expression and grammar, did not excuse the particular and different substantive inadequacies of the plaintiff in his examination papers. Plaintiff suffered no damages; his papers were not faulted by the school because of the slack in expression cut for others, who were not identified or even shown to have participated in these particular examinations.

The resulting trial in the United States District Court for the Eastern District of New York was presided over by Judge Bernard A. Friedman, sitting by designation. That name may be familiar to some of you because that is the same Judge Friedman who wrote a masterful opinion (discussed here) a few years after this case upholding Barbara Grutter’s claim of discrimination against the University of Michigan Law School, an opinion that the Supreme Court, in one of its saddest hours, unfortunately refused to follow.

In a preview of things to come, Judge Friedman showed that same brilliance here. When the jury, in its wisdom, awarded Tolbert $50,000 in punitive damages, Judge Friedman set aside the verdict and ruled for the defendants as a matter of law, finding a “complete lack of evidence to support the jury’s finding as to liability.” There “is simply no evidence,” Judge Friedman held,

from which a reasonabl[e] jury could have found that Professor Liebman’s comment regarding cutting slack for Asian or Chinese or ESL students meant that Professor Liebman, or the media studies department generally, had a racially discriminatory grading policy. Professor Liebman’s comment was ambiguous and it is not, on its face, indicative of any such discrimination. Moreover, the only evidence explaining the comment indicates that students who do not speak English as their native language were “cut slack” only in the sense that grammatical, punctuation and spelling errors were overlooked. . . . There is absolutely no evidence whatsoever to support a finding that these students were “cut slack” on matters of substance. In fact, the only evidence on this particular point was to the effect that the substance of every student’s examination was graded in the same manner, and that a student’s race or ethnicity played no role whatsoever in the evaluation. . . . In short[,] there is a complete lack of evidence to support plaintiff’s contention that Professor Liebman’s comment demonstrates the existence of a racially discriminatory grading policy. All of the evidence is to the contrary.

On this record — again, viewing the evidence in the light most favorable to plaintiff and drawing all reasonable inferences in his favor — there is no conceivable way a reasonable jury could have found that Professor Liebman discriminated against plaintiff based on his race in giving his examination a failing grade. Nor, for the same reason, could a reasonable jury have found that Professor Cairns discriminated against plaintiff by failing to intervene when Professor Liebman made his “cut slack” comment or by failing to take any other action against the allegedly discriminatory grading policy. Since plaintiff failed to prove the existence of any such policy, and since defendants[] conclusively disproved its existence, there is no basis to plaintiff’s argument that Professor Cairns had [a] duty to intervene. A fortiori, there is no basis at all for the jury’s award of punitive damages against either Professor Liebman or Professor Cairns, as there was no evidence that they discriminated against plaintiff to even the slightest degree, to say nothing of the “malice,” “evil motive” or “reckless indifference” which must be proven in order to support an award of punitive damages. . . . Accordingly, the court shall set aside the jury’s verdict as to Professors Liebman and Cairns and enter judgment in their favor. The verdict against the college must likewise be set aside insofar as it is based on the “cut slack” comment by Professor Liebman.

By now you can guess what happened. Tolbert appealed again, and this time his case was heard by a different three judge panel of the Second Circuit, and Judge Sotomayor was on this panel. This panel reversed Judge Friedman and reinstated Tolbert’s $50,000 award. (The quotes from Judge Friedman above are taken from this opinion.) Justice Sotomayor did not write the opinion, which was written by Judge Kearse, but there was no dissent, so she obviously agreed with it.

It is a revealing opinion, although as I shall suggest it may be useful against future Justice Sotomayor, assuming she is confirmed, in an odd but satisfying way. It is also a fertile ground for questions to her in the her upcoming hearing.

First, the panel agreed that Tolbert’s case was based on Professor Liebman’s alleged statement that the department “‘cut slack’ for Chinese students” and thus violated Tolbert’s civil rights by “denying him the Master’s degree in Media Studies by applying standards based in whole or in part on students’ race and/or ethnic origin.” Moreover, the panel held,

[t]here is of course no question that the “cut slack” statement was the linchpin of Tolbert’s case. It was a statement that openly expressed a differential in treatment in response to an explicit inquiry on the matter of ethnicity. The ultimate question was what was meant by the statement “we cut slack” with respect to Chinese students.... Such ambiguities are to be resolved by the factfinder, not by the court as a matter of law; and in parsing the meaning of that ambiguous statement, the jury was entitled to look both at the statement itself and at evidence of the circumstances in which it was made.

Was there a difference in the standards by which the Department graded examination essays? The jury could so infer from the ordinary meaning of to “cut slack,” which is to apply a relaxed standard. Did that statement differentiate only between content and writing style, as defendants contended at trial, or did it instead refer to a differentiation between groups of students? The jury could infer that the “cut slack” statement referred to differentiation between groups.... Was the differentiation based on ethnicity? The jury could infer that it was, because the “cut slack” statement was the direct response to Tolbert’s question as to how his writing could have been viewed as more flawed than that of the Chinese students. Was a differentiation based on ethnicity a Department policy? The jury could infer that it was from the facts that Liebman stated “we cut slack” (emphasis added); that he made that statement in the presence of Cairns, the Department chair, and Cairns not only did not inquire as to what Liebman meant but confirmed his statement by nodding in response to Meltzer’s inquiry; and that the statement was not a stray remark in a corridor by a person who was not a decisionmaker, but rather was a statement by a professor in the Department in direct response to a question focusing on ethnicity, in a meeting called by the Department chair expressly for the purpose of discussing why Tolbert had been graded as he had.

“In sum,” the panel concluded,

the evidence permitted inferences ... that the Department had intentionally injected consideration of ethnicity into its exam-grading decisions and applied a more rigorous standard to Tolbert than to students of other ethnicity.

There was a bit more to the case, and to the panel’s opinion, but I’ve presented the guts of it, as well as what I think is a fascinating window into Judge Sotomayor’s approach to race issues that come before her. (It would also take a person of far larger spirit than I not to pause here to wonder whether Sotomayor herself ever had any slack cut for her because she somehow graduated from a Catholic high school, Princeton, and Yale Law School and served on the federal bench while believing that “in Spanish we do not have adjectives. A noun is described with a preposition,” as I discussed here.)

So, on the basis of this record, Sotomayor agrees that a) a “differential in treatment” of students from different racial or ethnic groups is discriminatory; b) mere “consideration of ethnicity” that leads to applying “a more rigorous standard” to students of one racial or ethnic group is a violation of Title VI and presumably other prohibitions against racial discrimination; c) that if “a differentiation based on ethnicity” is “Department policy” or if there is a “a difference in the standards by which the Department graded examination essays” according to race or ethnicity that department can be held liable for racial discrimination.

Would someone please ask Judge Sotomayor why the criteria she used to award Mr. Tolbert $50,000 because some Chinese students were allowed to take a dictionary into an exam would not, if fairly applied, prohibit all race preference programs that permeate higher education today?

Posted by John Rosenberg at 10:33 PM | Permalink | Say What? (2) | TrackBacks (0)

As everyone knows by now, a great deal of attention has been paid to Sonia Sotomayor’s belief (despite the fact that she call’s it a “hope”) that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” (Some of that attention has been here, and here.)

Now the excuses, interpretations, deconstructions, etc. have started in earnest. President Obama says she’s guilty of merely “a poor choice of words.” Now Sotomayor herself is echoing the White House’s construal of her remarks, telling Sen. Feinstein that her “wise Latina” remarks were “a poor choice of words.”

In another influential aw shucks attempted whitewash (or would that be brownwash?),

Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court, read the speech and concluded it amounted to little more than Sotomayor acknowledging that judges, like anyone, are products of where and how they grew up.

“Having that context can be valuable for a judge,” Goldstein said. “There are some cases, like cases of discrimination, where if you have been in someone’s shoes, you can better understand it.”

Goldstein’s first point would be more persuasive if all Sotomayor had said is that a judge’s opinions are informed, and even influenced, by her experience. But, unfortunately for Goldstein’s defense, that’s not the controversial core of what she said. She said “a wise Latina ... would more often than not reach a better conclusion than a white male.” [Emphasis added] That assertion is considerably different from Goldstein’s and presidential press secretary Robert Gibbs’s translation, as Gibbs put it, “that she was simply making the point that personal experience are relevant for the process of the judging.”

And there’s also a problem with his second point. Although many of Sotomayor’s advocates may not agree, all “cases of discrimination” are not actually “cases of discrimination.” That is, often courts find claims of discrimination unfounded. In those cases a judge placing herself in the shoes of the plaintiff, and thus letting her own views of discrimination color her empathy, might actually lead to a miscarriage of justice. Moreover, all those who claim discrimination do not wear shoes that would fit “a wise Latina” — one thinks of Mr. Ricci and his fellow plaintiffs in the New Haven fire department. Finally, if “cases of discrimination” can be decided better by a judge who has empathy for the plaintiff, it follows that some “cases of discrimination” can also be decided better by judges who can put themselves in the shoes of falsely accused defendants. Rather than selecting judges on the basis of what shoes fit, maybe it would be better to select those who are best able to step out of their own shoes while not stepping into someone else’s.

In any event, there are at least a couple of problems with the “poor word choice” defense. First, what words should she have used to make her point that female Latina-ness — “[w]hether born from experience or inherent physiological or cultural differences,” as she put it in her now famous speech — equips “a wise Latina” to make better decisions than white males?

Second, and fatal to this defense, if Sotomayor’s “word choice” was “poor,” it was a poor choice she has made over and over and over again throughout her career, as revealed by the questionnaire she just returned to the Senate. A CQ Politics reported last night,

Supreme Court nominee Sonia Sotomayor delivered multiple speeches between 1994 and 2003 in which she suggested “a wise Latina woman” or “wise woman” judge might “reach a better conclusion” than a male judge....

Her repeated use of the phrases “wise Latina woman” and “wise woman” would appear to undermine the Obama administration’s assertions that the statement was simply a poor choice of words.

But consider: maybe everyone’s been barking up the wrong tree, arguing about racial and ethnic essentialism in the abstract. Why argue about whether “experience or inherent physiological or cultural differences” would lead “a wise Latina” to make “better decisions” when we have an actual judge and nominee who is presented to us, and who presents herself, as that very “wise Latina”?

Why not simply ask Judge Sotomayor to point to her own opinions from her many years on the bench that are better because of her Latina physiological or cultural inheritance? Far from regarding such a question as out of order, she has virtually invited it. In The Speech (and subsequent law review article that printed it), after all, she herself said:

I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Fine. So Sotomayor should show us where those differences have actually led her to make better decisions than a white male could make.

There is, of course, another possibility. Perhaps when Sotomayor was discussing “a wise Latina,” she did not have herself in mind. Perhaps she’s merely a Latina, and thus her claims about the influence of experience, physiology, or culture do not apply to herself.

Posted by John Rosenberg at 12:11 PM | Permalink | Say What? (9) | TrackBacks (0)

Quinnipiac University has released dramatic new poll results on affirmative action. From the summary:

American voters say 55 – 36 percent that affirmative action should be abolished, and disagree 71 – 19 percent with Supreme Court nominee Sonia Sotomayor's ruling in the New Haven firefighters' case, according to a Quinnipiac University poll released today.

More than 70 percent of voters say diversity is not a good enough reason to give minorities preferential treatment in competition for government or private sector jobs, the independent Quinnipiac University survey of more than 3,000 voters finds.

Looking at specifics of affirmative action, American voters:

• Oppose 70 – 25 percent giving some racial groups preference for government jobs to increase diversity. Black voters support it 49 – 45 percent while Hispanic voters are opposed 58 – 38 percent;

• Oppose 74 – 21 percent giving some racial groups preference for private sector jobs to increase diversity. Voters in every racial and religious group oppose this;

• Oppose 64 – 29 percent affirmative action for Hispanics in hiring, promotion and college entry. Black voters support it 59 – 30 percent while Hispanics split 47 – 48 percent;

• Oppose 61 – 33 percent affirmative action for blacks in hiring, promotion and college entry. Black voters support this 69 – 26 percent, as do Hispanics 51 – 46 percent;

• Oppose 62 – 32 percent affirmative action for white women in hiring, promotion and college entry. Women oppose this 58 – 35 percent but blacks support it 55 – 37 percent.
  

“Terminology is often important in the battle over such programs,” notes Peter Brown, assistant director of the Quinnipiac University Polling Institute. “By a 51 – 36 percent margin voters say ‘preferences’ is the better way to describe them than ‘affirmative action,’ even though the news media mostly use the term ‘affirmative action.’”

The almost always reliable (though not always right) Peter Schmidt of the Chronicle of Higher Education has a post on the Chronicle’s News Blog today that, uncharacteristically, appears to attempt to soften the impact of these findings. The post's headline, for example, states, “Poll Finds Most Americans Oppose Affirmative Action When Defined as ‘Preferences.’” [UPDATE: Schmidt also says poll findings “can be skewed by the wording of questions and the order in which questions are asked.”] True, but according to this poll they also oppose affirmative action when it is described as affirmative action. Here, for example, is Question 14 and the responses:

Which comes closer to your point of view regarding affirmative action programs in the work place — A) We should have affirmative action programs to overcome past discrimination, B) We should have affirmative action programs to increase diversity or C) We should not have affirmative action programs?

A) Should have for past discrimination: 20%

B) Should have to increase diversity: 27%

C) Should not have: 47%

All the results are much worth reading, especially the breakdown by partisan affiliation.

This poll, in short, shows the breadth and depth of public opposition to race preferences, however described. The only significant exceptions are black support for preferences for themselves and others (including white women, by 55% – 37%, which even women oppose, 58% – 35%) and Democrats, who support most preference programs — but even Democrats oppose preferences to produce proportional representation of racial and ethnic groups in the workforce (by 63% – 32% in private industry and 56% – 39% in the government workforce).

Posted by John Rosenberg at 10:42 PM | Permalink | Say What? (4) | TrackBacks (0)

On the National Journal’s new Ninth Justice blog yesterday Stuart Taylor passed on Brooklyn College history professor K.C. Johnson’s generally favorable comments on Sonia Sotomayor’s Princeton senior thesis, though Johnson did note a few discordant trendy leftist notes from the 1970s (such as her insistence on calling the U.S.Congress the “North American Congress” or the “mainland Congress”).

Perhaps more troubling, however, is something from a 1996 speech that Taylor quotes without comment:

Judge Sonia Sotomayor said in a 1996 speech at Princeton University’s Third World Center (now called the Carl A. Fields Center) that when she arrived at Princeton in 1972 as her high school’s valedictorian, “I found out that my Latina background had created difficulties in my writing that I needed to overcome. For example, in Spanish we do not have adjectives. A noun is described with a preposition.... My writing was stilted and overly complicated, my grammar and vocabulary skills weak.”

To catch up with her prep school classmates, Sotomayor recalled, “I spent one summer vacation reading children’s classics that I had missed in my prior education -- books like Alice In Wonderland, Huckleberry Finn and Pride and Prejudice. My parents spoke Spanish; they didn’t know about these books. I spent two other summers teaching myself anew to write.”

She taught herself well, graduating summa cum laude and winning the prestigious Pyne Prize in her senior year. The prize was for academic excellence and -- Judge Sotomayor said in the 1996 speech — “because of my work with Accion Puertorriquena, the Third World Center and other activities in which I participated, like the university’s Discipline Committee.”

Excuse me, but after all that self-taught grammar, etc., could 1976 Princeton summa Sonia Sotomayor really still believe, in 1996, that “in Spanish we do not have adjectives. A noun is described with a preposition”?

From a brief lesson on Spanish adjectives:

In Spanish, most adjectives change form, depending upon whether the word they modify is masculine or feminine. Notice the difference between “the tall boy” and “the tall girl.”

el chico alto
la chica alta

Adjectives also change form depending upon whether the word they modify is singular or plural. Notice the difference between “the tall boy” and “the tall boys” ; “the tall girl” and “the tall girls.”

el chico alto
los chicos altos
la chica alta
las chicas altas

Many common adjectives end in -o. These adjectives have four forms. The following words all mean “tall”:

alto
alta
altos
altas

The correct form of the adjective depends upon the noun it modifies. Is the noun masculine or feminine? Singular or plural?

libro rojo
red book

pluma roja
red pen

libros rojos
red books

plumas rojas
red pens

As it happens, there is a perfectly appropriate Spanish adjective to describe this “wise Latina’s” 1996 assertion that “in Spanish we do not have adjectives”: loco. [UPDATE: Actually, my Spanish speaking wife tells me that if I'd read what I posted above I'd know the correct form of the appropriate adjective is loca.]

Posted by John Rosenberg at 9:41 PM | Permalink | Say What? (9) | TrackBacks (0)