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It seems like Harvard and those other universities might have been pushing the boundaries. Was the discrimination required or just allowed? The court for Grutte

It seems like Harvard and those other universities might have been pushing the boundaries. Was the discrimination required or just allowed? The court for Grutter seemed to say it was "required" and for Bakke a "compelling state interest", but I might not understand the meaning of that properly. There are universities that don't discriminate (UC?) and they somehow get away with it. If you were running Harvard and trying your best to comply with the law, would you feel it's legally safer to discriminate or to not discriminate? The answer to that points to whether they were operating in bad faith or not. Title VI seems to clearly say "don't discriminate" but again I might not understand how exceptions are allowed.

otterley 1y ago
It's important to understand the context in which these laws and Constitutional amendments were written. They were designed and enacted after the Civil War (in the case of the Fourteenth Amendment) and the 1960s (Civil Rights Act, once we determined the Fourteenth Amendment was insufficient) to prevent Black people from being discriminated against. At the time, nobody, including the authors, considered these laws to be a shield to protect white and Asian people from discrimination. (At that time, there were hardly any Asians in the US anyway.) So, from the 1960s until recently, the Court allowed universities to consider race in university admissions because it advanced a public policy that sought to improve the lot of Black people: the more Blacks could enter the ranks of the educated elite, the better off they would be in the long run, both socially and economically. Over time, though, people whose admissions were rejected started to fight back: they felt that academic merit trumped all other considerations. After all, if they got better grades and aptitude test scores, weren't they more deserving of admission? The fights began, and over time, the Court chipped away at the acceptable use of race in admissions. Finally, in SFAA, the Court did away with them altogether. As far as "pushing the boundaries" is concerned, actors will generally try to do whatever's in their best interest provided it's not illegal. There's no reward for maintaining a wide margin from legal boundaries when there's competition.
- foxglacier 1y ago
  Is that how the law works? Because the Civil Rights Act was written with black people in mind, it only applies to black people even though the wording doesn't specify that? Surely it's quite an obvious omission that they would have written down if that's what they'd wanted. Is it a kind of trick law written to make people think other races are protected but due to how laws are interpreted, it was always known not to apply to them?
  - otterley 1y ago
    It is a fair criticism (some would say a defect) of our legal system that legislation is not always as explicit as we would like it to be. Take California's Penal Code 187(a) which defines murder as: "(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." It turns out that "malice aforethought" is a term of art that requires no actual malice and not much forethought. Anyway, if you look at the legislative history of the Civil Rights Act (and courts frequently look to legislative history when interpreting statutes), you'll see that its backers in Congress were concerned about racial segregation, which at the time according to practice separated white people from everyone else (mostly Blacks).
  - rayiner 1y ago
    If you’re not a textualist, there is a coherent reading that it only applies to American descendants of slaves. But that would mean that it doesn’t protect asians, hispanics, etc! A logical and factual error made by proponents of affirmative action is to start with the premise that the civil rights laws were intended to help american descendants of slaves, but then extend them to other non-whites by categorizing them as “functionally black.” This is utterly incoherent, because black descendants of slaves and native americans are sociologically and economically distinct from other non-whites. Hispanics are just time-shifted Italians and Irish: low skill immigrants that economically assimilate within a few generations. By contrast, the gaps between black descendants of slaves and native Americans and other americans are not shrinking over time. They remain as large today as in 1965. There’s a coherent version of affirmative action that gives a preference to descendants of slaves and native Americans but nobody else. But that bears no resemblance to the “diversity” based system that actually exists, which irrationally privileges Cubans over Bangladeshis because Indians are richer than Mexicans.

otterley 1y ago

It's important to understand the context in which these laws and Constitutional amendments were written. They were designed and enacted after the Civil War (in the case of the Fourteenth Amendment) and the 1960s (Civil Rights Act, once we determined the Fourteenth Amendment was insufficient) to prevent Black people from being discriminated against. At the time, nobody, including the authors, considered these laws to be a shield to protect white and Asian people from discrimination. (At that time, there were hardly any Asians in the US anyway.) So, from the 1960s until recently, the Court allowed universities to consider race in university admissions because it advanced a public policy that sought to improve the lot of Black people: the more Blacks could enter the ranks of the educated elite, the better off they would be in the long run, both socially and economically. Over time, though, people whose admissions were rejected started to fight back: they felt that academic merit trumped all other considerations. After all, if they got better grades and aptitude test scores, weren't they more deserving of admission? The fights began, and over time, the Court chipped away at the acceptable use of race in admissions. Finally, in SFAA, the Court did away with them altogether. As far as "pushing the boundaries" is concerned, actors will generally try to do whatever's in their best interest provided it's not illegal. There's no reward for maintaining a wide margin from legal boundaries when there's competition.

foxglacier 1y ago
Is that how the law works? Because the Civil Rights Act was written with black people in mind, it only applies to black people even though the wording doesn't specify that? Surely it's quite an obvious omission that they would have written down if that's what they'd wanted. Is it a kind of trick law written to make people think other races are protected but due to how laws are interpreted, it was always known not to apply to them?
- otterley 1y ago
  It is a fair criticism (some would say a defect) of our legal system that legislation is not always as explicit as we would like it to be. Take California's Penal Code 187(a) which defines murder as: "(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." It turns out that "malice aforethought" is a term of art that requires no actual malice and not much forethought. Anyway, if you look at the legislative history of the Civil Rights Act (and courts frequently look to legislative history when interpreting statutes), you'll see that its backers in Congress were concerned about racial segregation, which at the time according to practice separated white people from everyone else (mostly Blacks).
- rayiner 1y ago
  If you’re not a textualist, there is a coherent reading that it only applies to American descendants of slaves. But that would mean that it doesn’t protect asians, hispanics, etc! A logical and factual error made by proponents of affirmative action is to start with the premise that the civil rights laws were intended to help american descendants of slaves, but then extend them to other non-whites by categorizing them as “functionally black.” This is utterly incoherent, because black descendants of slaves and native americans are sociologically and economically distinct from other non-whites. Hispanics are just time-shifted Italians and Irish: low skill immigrants that economically assimilate within a few generations. By contrast, the gaps between black descendants of slaves and native Americans and other americans are not shrinking over time. They remain as large today as in 1965. There’s a coherent version of affirmative action that gives a preference to descendants of slaves and native Americans but nobody else. But that bears no resemblance to the “diversity” based system that actually exists, which irrationally privileges Cubans over Bangladeshis because Indians are richer than Mexicans.