Affirmative Action and Title VI

[Arthur Rubin]

This should be obvious, but I can't find it. I can't find a reference to why "Equal Protection" applies to prevent "Affirmative Action" at Harvard, as Harvard is not a government.

I thought I read, somewhere, that "Equal Protection" informs the Title VI non-discrimination regulations for universities that accept government funding, but I can't find it in the decision.

[Stuart O. Bronstein]

They likely get government money either in the way of grants or from
student loans. That's enough.


--
Stu
http://DownToEarthLawyer.com

[Rick]

"Arthur Rubin" wrote in message
news:6f64282b-aa46-4e92...@googlegroups.com...

In the footnote at the bottom of page 6 of the decision is this:

2Title VI provides that “[n]o 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.” 42 U. S. C.
§2000d. “We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by an institution
that accepts federal funds also constitutes a violation of Title VI.”
Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE
GORSUCH questions that proposition, no party asks us to reconsider it.
We accordingly evaluate Harvard’s admissions program under the standards of
the Equal Protection Clause itself.

--

[micky]

In misc.legal.moderated, on Tue, 18 Jul 2023 17:53:21 -0700 (PDT),

Arthur Rubin <ronni...@sprintmail.com> wrote:

>This should be obvious, but I can't find it. I can't find a reference to why "Equal Protection" applies to prevent "Affirmative Action" at Harvard, as Harvard is not a government.

AIUI, it's ironic, or catch 22, or something.

They tax us, for worthwhile purposes that neither the states nor private
parties adequately pursue. Then they give grants to or fund programs at
almost every college and university in the country. Then they enact a
law that says that any institution that gets federal funds cannot
discriminate on a list of characteristics.

If they didn't tax us so much, maybe Harvard could raise the money on
its own. Or through the state of Massechusettes,

Of course Massachusettes might have an equal protection caluse of its
own. Well, might not because afaik it wasn't a popular clause when
states wrote their constitutions. AFaik it wasn't even thought of until
the 1860's. But Mass. is only one state, and we can be sure southern
and other Republican states would, if they haad such a clause, use it to
ban affirmative action.

You can probably find Associate Justice Jackson's arguments that the
14th Amendment was passed to redress the wrongs done to black people,
and not to perpetuate them by baqnning race-based legislation. Part of
that is that the same Congress that passed the 14th Amendment also
passed some/much legislation that did indeed favor Negro people, so
apparently they weren't against it. (My perhaps very poor paraphrasing
of what she and others say.)

>I thought I read, somewhere, that "Equal Protection" informs the Title VI non-discrimination regulations for universities that accept government funding, but I can't find it in the decision.

Can't prove it by me.

--
I think you can tell, but just to be sure:
I am not a lawyer.

[Barry Gold]

On 7/18/2023 5:53 PM, Arthur Rubin wrote:
> This should be obvious, but I can't find it. I can't find a reference to why "Equal Protection" applies to prevent "Affirmative Action" at Harvard, as Harvard is not a government.
>
> I thought I read, somewhere, that "Equal Protection" informs the Title VI non-discrimination regulations for universities that accept government funding, but I can't find it in the decision.

The principle text of Title IX reads:
No person in the United States shall, on the basis of sex, be excluded

from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal
financial assistance.

At one time this was interpreted to apply to (1) the school's financial
assistance programs (which are partly funded by the Federal Government)
and (2) athletics (which also seems to get some federal money somehow).

But I think this has been broadened on the basis that federal funding
benefits the whole school. Even then, I think that if a college or other
school refuses all federal funding they should be exempt. Whether
Harvard is willing to do that is another question.

And I'll note that there are other means of "correcting" the current
admissions imbalance without using race/religion/etc. as a criterion.

One (which was used by the U. of California after an initiative banned
racial preferences) would be to give preference to those who do well
(e.g., grades and/or standardized tests) even though the high school
they attended had an overall record that is worse than the median.
Another is to give preference to those with identifiable ancestors who
were enslaved. (Compensating for the effects of slavery rather than
explicitly for race.) A third is to eliminate the "legacy" admissions,
which overwhelmingly favor white students.

--
I do so have a memory. It's backed up on DVD... somewhere...

[Rick]

"Barry Gold" wrote in message news:u981fh$1lu3u$1...@dont-email.me...

Roberts also gave them another option by saying you can't use race per se as
an admissions criterion, but it would be okay to give points for a
well-written essay which describes the student's experience as a minority
student battling discrimination in their prior schooling. As an example, if
a student has less than stellar grades but can explain that by discussing
the discrimination they may have encountered from teachers and other
students in their admission essay, Roberts seemed to hint that was a way to
give minority candidates an edge. Given Roberts history, I wonder in the
event there had been four minority votes rather than three, if he would have
switched sides on this decision.

--

[John Levine]

According to micky <mis...@fmguy.com>:

>If they didn't tax us so much, maybe Harvard could raise the money on
>its own. Or through the state of Massechusettes,

Harvard has a endowment worth over $50,000,000,000. They're not hurting.

They could probably get by without Federal grant money but the optics
of turning it down so they can continue admission practices that are
widely (if not totally accurately) seen as discriminatory would be
dreadful.

As someone else noted, Roberts said it's OK to take into account
applicants statements about their experience as members of various
racial groups. On the one hand, sheesh, on the other hand, if this
means fewer children of diplomats who went to finishing school but
happen to be black, and more smart poor kids, that wouldn't be bad.

--
Regards,
John Levine, jo...@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

[micky]

In misc.legal.moderated, on Wed, 19 Jul 2023 23:55:59 -0700 (PDT), "John

Levine" <jo...@taugh.com> wrote:

>According to micky <mis...@fmguy.com>:
>>If they didn't tax us so much, maybe Harvard could raise the money on
>>its own. Or through the state of Massechusettes,
>
>Harvard has a endowment worth over $50,000,000,000. They're not hurting.

"Don't touch the principal!" or the income from it goes down.

They wouldn't take government grants if they could get the money without
strings somewhere else.

And Harvard is, I believe, just one college that the OP Arthur chose as
an example. The same problems face every school.

>
>They could probably get by without Federal grant money but the optics
>of turning it down so they can continue admission practices that are
>widely (if not totally accurately) seen as discriminatory would be
>dreadful.

FWIW I wasn't actually recommending they turn down grants. I was
describing how independant universites that should be free to run their
own show were made subject to the rules of the government. First they
tax, then they give the money back, but with strings. IIRC, this is
how the feds manipulate the states too. Now most** of that
manipulation is for good purposes, but if the government changes
dramatically and the goals change, that might not be true anymore.

**Not all, even now, by some reasonable standards.

>As someone else noted, Roberts said it's OK to take into account
>applicants statements about their experience as members of various
>racial groups. On the one hand, sheesh, on the other hand, if this
>means fewer children of diplomats who went to finishing school but
>happen to be black, and more smart poor kids, that wouldn't be bad.

True.

[Rick]

"micky" wrote in message news:u3gibihdqb6ajca5u...@4ax.com...

>

>
>FWIW I wasn't actually recommending they turn down grants. I was
>describing how independant universites that should be free to run their
>own show were made subject to the rules of the government.

They ARE free to run their own show, but if they choose to accept money from
the government, then it makes sense they must abide by the government's
rules.

>First they tax, then they give the money back, but with strings. IIRC,
>this is
>how the feds manipulate the states too.

I'm not sure I would call this manipulation. Remember that the federal
government is ultimately elected by the people. In theory, the government
is doing what the people who elected it want it to do. If people aren't
satisfied with their government, they can always elect a new one.

>Now most** of that
>manipulation is for good purposes, but if the government changes
>dramatically and the goals change, that might not be true anymore.
>

Well what you call "good purposes" would be in the eye of the beholder.
Obviously, if the government changes, that means the people decided to put a
new government in place, which suggests that people collectively endorse
whatever those new goals might be


--

[Barry Gold]

Well, this is getting a bit more into political philosophy than law, but
one of the problems I see with our (USA) system is that when you elect
someone, you get EVERYTHING about them.

I read a novel set in an alternate world, where there are no "elections"
as we think of them. A voter gives a congressperson their proxy. And
can withdraw that proxy at any time. So the number of votes a
congressperson can cast can change. If they take a stand that is popular
with half their constituents, they will suddenly find that (for that
particular bill/amendment/motion) they only have half as many votes as
they did on some other bill that all their constituents liked.

Currently a lot of people vote based on a single issue, e.g., abortion.
So they elect somebody who will consistently vote to ban abortion or to
protect abortion rights, as the case may be. But that congressperson may
be a self-aggrandizing liar (cf. George Santos) or vote to favor
corporations that pollute the air and his/her constituents tolerate that
because of his position on that single issue.

In the system I described, he might be able to cast 500,000 votes on
abortion, but on pollution bills he might have only 20,000 votes.

I think I would like that system a lot more, and we would get a lot less
extremism in our legislatures. [It also eliminates gerrymandering, as
there are no more districts -- you can choose anybody who is willing to
spend a lot of time evaluating and voting on various issues.]

[Arthur Rubin]

On Thursday, July 20, 2023 at 5:45:33 PM UTC-7, Barry Gold wrote:
>
> I read a novel set in an alternate world, where there are no "elections"
> as we think of them. A voter gives a congressperson their proxy. And
> can withdraw that proxy at any time. So the number of votes a
> congressperson can cast can change. If they take a stand that is popular
> with half their constituents, they will suddenly find that (for that
> particular bill/amendment/motion) they only have half as many votes as
> they did on some other bill that all their constituents liked.

L Neil Smith's "Probability Broach" novels had that, but not on a per-issue basis.
I don't recall any which had proxies on a per-issue basis. It would certainly make
for confusion if a piece of legislation covered more than one issue.

On Quatloos.com , I've read that there is a Canadian who says the Canadian
government is invalid because it DOESN'T allow voters to change their allegiance
at any time.

(My apologies if my ".signature" doesn't appear. I hadn't used Google Groups for a few
years before my last post, and I'm not sure how the configuration works any more.)

[Stuart O. Bronstein]

Cumulative voting can work similar to that. For example, everyone in
a state can vote for all candidates for Representative in their
state, have as many votes as there are Representatives, but can cast
as many of their votes for one candidate as they wish. That would
allow small parties to band together and get some representation.


--
Stu
http://DownToEarthLawyer.com


--
This email has been checked for viruses by AVG antivirus software.
www.avg.com

[John Levine]

According to Barry Gold <bg...@labcats.org>:

>Well, this is getting a bit more into political philosophy than law, but
>one of the problems I see with our (USA) system is that when you elect
>someone, you get EVERYTHING about them.
>
>I read a novel set in an alternate world, where there are no "elections"
>as we think of them. A voter gives a congressperson their proxy. And
>can withdraw that proxy at any time. So the number of votes a
>congressperson can cast can change. If they take a stand that is popular
>with half their constituents, they will suddenly find that (for that
>particular bill/amendment/motion) they only have half as many votes as
>they did on some other bill that all their constituents liked.

Many states, notably California, approximate this with initiative and
referendum. If enough people sign a petition, it's put to a popular
vote and if approved, it becomes law.

While this may sound like a good idea, if you look at the results in
California, the results have been decidedly mixed. About 50 years ago
people realized that with sufficiently vigorous and disingenuous
advertising you can get voters to vote for all sorts of stuff.

The state has a crazy quilt of laws, some quite pernicious like the
one that says they can't raise the property tax on a house more than a
nominal amount except when it's sold, a huge subsidy to old house
owners at the expense of younger people and tenants.

[Barry Gold]

On 7/22/2023 7:15 AM, John Levine wrote:
> While this may sound like a good idea, if you look at the results in
> California, the results have been decidedly mixed. About 50 years ago
> people realized that with sufficiently vigorous and disingenuous
> advertising you can get voters to vote for all sorts of stuff.
>
> The state has a crazy quilt of laws, some quite pernicious like the
> one that says they can't raise the property tax on a house more than a
> nominal amount except when it's sold, a huge subsidy to old house
> owners at the expense of younger people and tenants.

Yes. I remember back in the 60s or 70s there was an initiative
restricting new cable TV installations, effectively protecting the
existing cable companies from competition. It passed, but the courts
ruled it unconstitutional for reasons I don't remember.

Prop 13 is almost as sacrosanct as Social Security. In fact, we keep
expanding it. In 1986, Prop. 58 allowed homeowners to transfer their
property to their children without triggering a reassessment, and prop.
60 allowed homeowners to transfer their assessed value to a replacement
home if the new home has equal or lesser value and is in the same county.

And in 1988, Prop. 90 expanded Prop. 58 to people moving to another
county *if* the incoming county allows it. 1996 Prop. 193 allows people
to transfer property to their _grand_children, including both their
primary residence and up to $1million of other property.

And then there was Proposition 8, which amended the CA Constitution to
define marriage as only between a man and a woman. That was eventually
overturned by Obergefell v. Hodges.

[Roy]

Subject change

[RichD]

On July 19, Rick wrote:
> Roberts also gave them another option by saying you can't use race per se as
> an admissions criterion, but it would be okay to give points for a
> well-written essay which describes the student's experience as a minority
> student battling discrimination in their prior schooling. As an example, if
> a student has less than stellar grades but can explain that by discussing
> the discrimination they may have encountered from teachers and other
> students in their admission essay, Roberts seemed to hint that was a way to
> give minority candidates an edge.

That's a gaping hole, is it not?

For the leftists at Harvard, every brown or black in USA is the victim
of discrimination, utterly without personal agency. (every penitentiary
inmate is a political prisoner, etc.)

"Dear ChatGP, please write an essay on my suffering due to a
legacy of racial discrimination"

--
Rich

[Rick]

"RichD" wrote in message
news:be56b8cb-2b33-4d1d...@googlegroups.com...

>
>On July 19, Rick wrote:
>> Roberts also gave them another option by saying you can't use race per se
>> as
>> an admissions criterion, but it would be okay to give points for a
>> well-written essay which describes the student's experience as a minority
>> student battling discrimination in their prior schooling. As an example,
>> if
>> a student has less than stellar grades but can explain that by discussing
>> the discrimination they may have encountered from teachers and other
>> students in their admission essay, Roberts seemed to hint that was a way
>> to
>> give minority candidates an edge.
>
>That's a gaping hole, is it not?
>

Yes, it is, which is why I think Roberts actually may have wanted to side
with the minority on this. But even with his vote, it still would have been
5-4, so I think he switched to the majority (making it 6-3) so he could
write the majority opinion and put that little workaround in there.

--

[Elle N]

On Tuesday, July 18, 2023 at 11:47:22 PM UTC-5, micky wrote:
> You can probably find Associate Justice Jackson's arguments that the
> 14th Amendment was passed to redress the wrongs done to black people,
> and not to perpetuate them by baqnning race-based legislation. Part of
> that is that the same Congress that passed the 14th Amendment also
> passed some/much legislation that did indeed favor Negro people, so
> apparently they weren't against it. (My perhaps very poor paraphrasing
> of what she and others say.)

With reference to the 14th amendment and Reconstruction era legislation,
Justice Jackson has never used the word "Negro" in this manner. Why?
Because first, during the Reconstruction era the first letter of the word
was //not// capitalized. It was decades later that W.E.B. Du Bois began an
ultimately successful campaign to capitalize the first letter.

Second in the Reconstruction era the legislators who were using the word
"negro" (not "Negro") were the ones who //opposed// legislation giving
equal rights to Black people. Except to point out that these legislators'
arguments (which from time to time used the word "negro") did not get
anywhere, Justice Jackson would not be quoting these latter legislators.

Outside of historical quotations, and first letter capitalized or not, use of
the word today is not acceptable. The so-called "paraphrase" above is
deplorable.

[RichD]

WSJ yesterday notes this has already begun. Stanford and Rice have
changed their admission essay prompts to "Tell us what adversity you
have overcome (race/sexuality/immigration discrimination)... "

The American College of Nurses is defiant: "We won't let this decision
interfere with our diversity mission, in order to provide the best health care"
Yes folks, the germs care about the nurse's skin color, they retreat faster
when race quotas are met -

Didn't lose much time, did they?


--
Rich

[John Levine]

According to RichD <r_dela...@yahoo.com>:

>The American College of Nurses is defiant: "We won't let this decision
>interfere with our diversity mission, in order to provide the best health care"
>Yes folks, the germs care about the nurse's skin color, they retreat faster
>when race quotas are met -

I realize this may be hard for us snarky old white guys to imagine,
but do you suppose there's any possibility that patients (of any
background) do better when the nurses look and sound like they do?

[Elle N]

Nursing colleges have been aiming to diversify by gender (in favor of men)
at least as much as race. Today only around 13% of nurses are male.

The Supreme Court's 1982 ruling in Mississippi University for Women
v. Hogan put the issue on the map. Hogan had been denied
admission to a Mississippi nursing college, because he was male.
Hogan won in a 5-4 SCOTUS decision. The decision relied on much of the
work then-attorney Ruth Bader Ginsburg had done in the years immediately
preceding the decision, where Ginsburg had used cases where
institutions discriminated against men (sic) to establish precedent.

[Mike Anderson]

On 8/14/2023 11:42 PM, John Levine wrote:
> According to RichD <r_dela...@yahoo.com>:
>> The American College of Nurses is defiant: "We won't let this decision
>> interfere with our diversity mission, in order to provide the best health care"
>> Yes folks, the germs care about the nurse's skin color, they retreat faster
>> when race quotas are met -
>
> I realize this may be hard for us snarky old white guys to imagine,
> but do you suppose there's any possibility that patients (of any
> background) do better when the nurses look and sound like they do?

Personally, I am one "snarky old white guy" who does NOT want "a snarky,
old white guy" as my nurse. Give me the cute, bubbly, young male nurse!
(Actually, I'd prefer the female one. I just had to throw a curve ball
of SOME sort into there.)

All joking aside, to say blacks would prefer black nurses (of whatever
sex) seems to be getting into another sort of
segregation/discrimination. I would like to think that people of ALL
ages, sexes, races, planetary origins would prefer to see a mixed group
of caregivers that was trained and hired SOLELY based on their skills
and not on their race, etc. But, unfortunately, it doesn't always work
that way and many people are hired or passed over because of their sex,
race, societal status, etc.