BAMN vs. University of Michigan

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BAMN vs. University of Michigan

Postby Vaniver » Tue Jul 05, 2011 7:19 pm UTC

From CNN, BAMN, and Steve Sailer.

There are two sides to this discussion: whether or not affirmative action should exist (and what form it should exist in), and whether or not it should exist by any means necessary. I'm more interested in the second question in this thread; feel free to start a thread in SB if you'd like to talk about the first half.

The story: in 2006, Michigan voters voted 58-42 to end racial and sexual preferences in Michigan. According to BAMN, blacks (recipients of racial preferences) voted 9-1 to preserve them while whites (not recipients of racial preferences, but half of whom are recipients of sexual preferences) voted 2-1 to end them. Since whites outnumber blacks, the measure carried by a landslide.

As I understand it, the 6th Circuit U.S. Court of Appeals 2-1 ruling is as follows: not that Prop 2 itself violated the Equal Protection Clause (which would have been ludicrous, as it is a more explicit restatement of that clause) but that the method with which it was enacted violated the Equal Protection Clause. Since blacks are not the majority of voters, they cannot vote themselves privileges in the same way that whites can vote themselves equal protection, thus in order to give them equal protection under the law we need laws that discriminate on the basis of race, sex, color, ethnicity, or national origin.

The ruling went against precedent (Prop 209 in California is similarly worded and was upheld after being challenged), and BAMN is now contesting Prop 209 because they want to use the more recent case as precedent. The attorney general of Michigan is starting the appeals process for the case that was just decided.

I know there are a lot of supporters of Affirmative Action here, but are there any supporters of BAMN's methodology in this case?
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Re: BAMN vs. University of Michigan

Postby iop » Tue Jul 05, 2011 7:37 pm UTC

I think this ruling is perfectly in the spirit of the Founding Fathers who warned against the oppression of the minority by the majority through democracy, a.k.a. mob rule.

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Re: BAMN vs. University of Michigan

Postby CorruptUser » Tue Jul 05, 2011 8:00 pm UTC

But that would mean since people age 18-21 aren't the majority, the states have no right to vote to remove their right to drink. Also, prop 8 is illegal, since homosexuals aren't the majority. Oh, and since criminals are (hopefully) a minority, no ballot proposition can enhance or limit their rights.

This ruling, if upheld by SCOTUS, has very far reaching (and possibly dire) implications.
Last edited by CorruptUser on Tue Jul 05, 2011 8:02 pm UTC, edited 1 time in total.

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Re: BAMN vs. University of Michigan

Postby iop » Tue Jul 05, 2011 8:02 pm UTC

CorruptUser wrote:Also, prop 8 is illegal, since homosexuals aren't the majority.

Isn't that exactly why homosexuals are arguing that it's not ok to have something like prop 8 decided by voters, but rather, that it is up to judges to side with the minority and end their discrimination?

Remember the US was never intended to be a democracy.

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Re: BAMN vs. University of Michigan

Postby Arrian » Tue Jul 05, 2011 8:05 pm UTC

It actually followed Supreme Court precedent. From Volokh.com:

Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented.


Washington v Seattle School District and Hunter v Erickson are both Supreme Court cases. It looks like the California Prop 209 case was handled by the CA supreme court, which is definitely not precedent setting for a federal circuit court. I have a feeling that this case won't be binding precedent on future California prop 209 cases since it will be heard by a different circuit.

I'm not familiar with how BAMN handled this case.

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Re: BAMN vs. University of Michigan

Postby Xeio » Tue Jul 05, 2011 8:09 pm UTC

CorruptUser wrote:But that would mean since people age 18-21 aren't the majority, the states have no right to vote to remove their right to drink. Also, prop 8 is illegal, since homosexuals aren't the majority. Oh, and since criminals are (hopefully) a minority, no ballot proposition can enhance or limit their rights.

This ruling, if upheld by SCOTUS, has very far reaching (and possibly dire) implications.
Wait, are the things you listed the "dire" ones? Or do you have some that I'd actually disagree with (actually, I guess I may have read the criminal one wrong, I'm not sure if you were referring to voting rights or something else)? :P

Unrelatedly, was there ever actually a popular vote on drinking age or criminal voting rights?

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Re: BAMN vs. University of Michigan

Postby Silknor » Tue Jul 05, 2011 8:56 pm UTC

Vaniver wrote:As I understand it, the 6th Circuit U.S. Court of Appeals 2-1 ruling is as follows: not that Prop 2 itself violated the Equal Protection Clause (which would have been ludicrous, as it is a more explicit restatement of that clause) but that the method with which it was enacted violated the Equal Protection Clause. Since blacks are not the majority of voters, they cannot vote themselves privileges in the same way that whites can vote themselves equal protection, thus in order to give them equal protection under the law we need laws that discriminate on the basis of race, sex, color, ethnicity, or national origin.


I don't know if this was BAMN's argument, but it was not the argument put forth in the majority opinion. Rather the argument is that, under Supreme Court precedent (the cases of Seattle and Hunter mentioned above), the state may not disadvantage minority voters seeking beneficial legislation by requiring that said voters surmount additional burdens to achieve such legislation. For example in Hunter, the voters had passed an amendment by referendum that required "any ordinance regulating real estate 'on the basis of race, color, religion, national origin or ancestry'" passed by the City Council to be additionally approved by a referendum before becoming effective (in addition to striking down a recently passed non-discrimination ordinance). Thus if a minority under one of those groups wanted to get enacted into a law a non-discrimination ordinance protecting them, they would have to get the City Council to pass it and then have it upheld by a referendum. But if some other group (for example, LGBT people) wanted a non-discrimination protection in real estate, they would only need it approved by the City Council. So according to the Supreme Court, the amendment ran afoul of the Equal Protection Clause by placing a higher burden on a certain minority group.

Seattle was similar, removing the authority of local school boards to bus to schools besides the two closest to them (thus making it more difficult or impossible to implement any sort of desegregation by bushing program):

The initiative removes the authority to address a racial problem—and only a racial problem—from the existing decision-making body, in such a way as to burden minority interests. Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board. . . . As in Hunter, then, the community’s political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government.


The argument between the majority and the dissent in the 6th Circuit case turns on a number of questions regarding whether the tests in Hunter and Seattle are applicable. The most notable one seems to be the dissent's claim that since admission decisions/policies are made by an admissions committee and the broader faculty (who are not politically or electorally accountable) instead of elected officials (such as the Board of Governors/Regents for the university), there is no effective means for those seeking to influence admissions committee/faculty decisions anyway and so there's no special burden placed on those trying to influence those decisions with regards to race (so both those seeking changes with regards to race and those seeking changes with regards to factors not covered by the law in question have the same burdens in seeking to change policy: since they can't really expect to effectively lobby those who make the admissions policies, they have to try to get changes either by state legislation or constitutional amendment by referendum).

Of course, the majority disagrees and argues that these decisisions are still a political process and so bound by Hunter and Seattle. But even if the majority's reasoning were upheld by the Supreme Court, I don't see any avenue towards the type of rulings CorruptUser describes. After all, the crux of the case is reordering a political process to make the minority less able to affect change by removing authority to make certain types of changes from one level of government. This is not analogous to any of the examples mentioned.
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Re: BAMN vs. University of Michigan

Postby CorruptUser » Tue Jul 05, 2011 8:58 pm UTC

Xeio wrote:
CorruptUser wrote:But that would mean since people age 18-21 aren't the majority, the states have no right to vote to remove their right to drink. Also, prop 8 is illegal, since homosexuals aren't the majority. Oh, and since criminals are (hopefully) a minority, no ballot proposition can enhance or limit their rights.

This ruling, if upheld by SCOTUS, has very far reaching (and possibly dire) implications.
Wait, are the things you listed the "dire" ones? Or do you have some that I'd actually disagree with (actually, I guess I may have read the criminal one wrong, I'm not sure if you were referring to voting rights or something else)? :P

Unrelatedly, was there ever actually a popular vote on drinking age or criminal voting rights?



Well, there was a ballot initiative in a town I was in to allow inmates to perform unpaid volunteer work. I voted "no"; volunteer for whom? ACORN? Or was it a thinly veiled form of slavery, where the inmates that worked for free got the non-rapey cellmates?

And no, not all of the examples are dire consequences. Just some examples of things decided by ballot initiative (depending on the state for the drinking one; some by ballot, others by elected officials).

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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 9:09 pm UTC

CorruptUser wrote:But that would mean since people age 18-21 aren't the majority, the states have no right to vote to remove their right to drink. Also, prop 8 is illegal, since homosexuals aren't the majority. Oh, and since criminals are (hopefully) a minority, no ballot proposition can enhance or limit their rights.

This ruling, if upheld by SCOTUS, has very far reaching (and possibly dire) implications.

The difference is, they aren't protected groups that even are subject to heightened scrutiny. The thing I find really funny about racially based selections or things like affirmative action is that nobody who is against them now seems to be raising a huge fuss about how racially based selections and affirmative action of the 1930s in towards the post WWII socialism that allowed whites to culminate into the suburbs (essentially to keep their kids from having to go to school with minorities) and middle class was a bad thing. One of the reasons we have them now is because certain groups were excluded from them in the first go around.

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Re: BAMN vs. University of Michigan

Postby CorruptUser » Tue Jul 05, 2011 9:16 pm UTC

I'm against affirmative action and am also against the racial quota policies of the 1930s (and the 1880s-1950s). I don't believe you can right a wrong with more wrongs. No wronging things right.

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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 9:19 pm UTC

CorruptUser wrote:I'm against affirmative action and am also against the racial quota policies of the 1930s (and the 1880s-1950s). I don't believe you can right a wrong with more wrongs. No wronging things right.

Then how exactly do you propose to right said wrong? By magically and suddenly embracing the effectiveness of meritocracy when one group, because of the previous wrong is disadvantaged in that meritocracy?

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Re: BAMN vs. University of Michigan

Postby Vaniver » Tue Jul 05, 2011 9:21 pm UTC

iop wrote:I think this ruling is perfectly in the spirit of the Founding Fathers who warned against the oppression of the minority by the majority through democracy, a.k.a. mob rule.
How is the removal of discrimination oppression?

Silknor wrote:But if some other group (for example, LGBT people) wanted a non-discrimination protection in real estate, they would only need it approved by the City Council. So according to the Supreme Court, the amendment ran afoul of the Equal Protection Clause by placing a higher burden on a certain minority group.
That is, they cannot ban discrimination based on race because they did not also ban discrimination based on sexual orientation (or any other conceivable status)?

Jahoclave wrote:The thing I find really funny about racially based selections or things like affirmative action is that nobody who is against them now seems to be raising a huge fuss about how racially based selections and affirmative action of the 1930s in towards the post WWII socialism that allowed whites to culminate into the suburbs (essentially to keep their kids from having to go to school with minorities) and middle class was a bad thing.
Since the rallying cries of the opponents to affirmative action tend to be things like "merit only" or "colorblind," I don't see how that implies they approve of systems that weren't merit only and weren't colorblind. Is that your best shot?
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Re: BAMN vs. University of Michigan

Postby Aikanaro » Tue Jul 05, 2011 9:23 pm UTC

Spoiler:
Jahoclave wrote:
CorruptUser wrote:I'm against affirmative action and am also against the racial quota policies of the 1930s (and the 1880s-1950s). I don't believe you can right a wrong with more wrongs. No wronging things right.

Then how exactly do you propose to right said wrong? By magically and suddenly embracing the effectiveness of meritocracy when one group, because of the previous wrong is disadvantaged in that meritocracy?

Not arguing, just asking a question, cos it's a weird way of looking at the problem I've thought of before.

Let's say that, in order to right the old wrongs, we plan on fully embracing a meritocracy, but first, we plan to randomize everyone's social position. Let's say we do this, and it ends up with a particular race getting 90% of the benefits, PURELY by chance. Is it then considered racist to stick with it? Some people are just born into better positions in life. Maybe your parents had money, maybe you won a college scholarship, whatever. Should we counterbalance those randomly assigned (as far as YOU, as an individual being BORN are concerned) benefits? And should we continue to do so indefinitely?

I'm....kinda looking at the thing like rolling stats in a tabletop right now. As I may have mentioned elsewhere, I'm also a little loopy right now, please forgive me. I think I'll spoiler this all in case of OT-ness.
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Re: BAMN vs. University of Michigan

Postby CorruptUser » Tue Jul 05, 2011 9:25 pm UTC

1) End to all race-based policies; no law or policy may take race/gender/age/orientation into account unless required for the purpose (e.g., old white females probably don't make convincing undercover agents)
2) Automatic acceptance to public colleges based on high school ranks (Florida and Texas do this for the top 10%), so people aren't over-penalized for living in a terrible school district
3) Better distribution of state funds to school districts, so poor areas won't have to make the decision between hiring semi-competent teachers and installing working toilets
4) End to bilingual classes; they aren't helping
5) Food stamps and maybe universal health-care
Last edited by CorruptUser on Tue Jul 05, 2011 9:28 pm UTC, edited 1 time in total.

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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 9:28 pm UTC

Vaniver wrote:
Jahoclave wrote:The thing I find really funny about racially based selections or things like affirmative action is that nobody who is against them now seems to be raising a huge fuss about how racially based selections and affirmative action of the 1930s in towards the post WWII socialism that allowed whites to culminate into the suburbs (essentially to keep their kids from having to go to school with minorities) and middle class was a bad thing.
Since the rallying cries of the opponents to affirmative action tend to be things like "merit only" or "colorblind," I don't see how that implies they approve of systems that weren't merit only and weren't colorblind. Is that your best shot?

Right, keep the privilege we gain through that practice. Ignore that said discrimination happened. Ignore that said discrimination now makes meritocracy impossible because we are privileged in that meritocracy because of previous racial practices. WE HAS PRIVILEGE. Fuck those who we unfairly kept out of the system. They should work hard like we didn't to achieve success. Of course, that'll be harder for them to do since we top the meritocracy.

Whitewashing history is fun. Until they start proposing how to fix the problem with meritocracy, then they really don't give a shit about previous racial practices. Don't give me this embracing "merit only" and "colorblind" means they were against those policies. They're benefiting from them and they seek no redress of the wrong done by them. Unless they're willing to give up their privilege or even recognize it, they endorse those policies.

@Corrupt: So, your solution to race based policies is de-facto race based policies under a different name?

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Re: BAMN vs. University of Michigan

Postby Aikanaro » Tue Jul 05, 2011 9:30 pm UTC

Spoiler:
Jahoclave wrote:
Vaniver wrote:
Jahoclave wrote:The thing I find really funny about racially based selections or things like affirmative action is that nobody who is against them now seems to be raising a huge fuss about how racially based selections and affirmative action of the 1930s in towards the post WWII socialism that allowed whites to culminate into the suburbs (essentially to keep their kids from having to go to school with minorities) and middle class was a bad thing.
Since the rallying cries of the opponents to affirmative action tend to be things like "merit only" or "colorblind," I don't see how that implies they approve of systems that weren't merit only and weren't colorblind. Is that your best shot?

Right, keep the privilege we gain through that practice. Ignore that said discrimination happened. Ignore that said discrimination now makes meritocracy impossible because we are privileged in that meritocracy because of previous racial practices. WE HAS PRIVILEGE. Fuck those who we unfairly kept out of the system. They should work hard like we didn't to achieve success. Of course, that'll be harder for them to do since we top the meritocracy.

Whitewashing history is fun. Until they start proposing how to fix the problem with meritocracy, then they really don't give a shit about previous racial practices. Don't give me this embracing "merit only" and "colorblind" means they were against those policies. They're benefiting from them and they seek no redress of the wrong done by them. Unless they're willing to give up their privilege or even recognize it, they endorse those policies.

@Corrupt: So, your solution to race based policies is de-facto race based policies under a different name?


The problem is, there's always going to be glitches in the system that throw off a perfectly balanced meritocracy for future generations. You're ALWAYS going to have the Paris Hiltons, etc., who would fail in a meritocracy except they were lucky in who their parents were.
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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 9:33 pm UTC

Aikanaro wrote:
Spoiler:
Jahoclave wrote:
Vaniver wrote:
Jahoclave wrote:The thing I find really funny about racially based selections or things like affirmative action is that nobody who is against them now seems to be raising a huge fuss about how racially based selections and affirmative action of the 1930s in towards the post WWII socialism that allowed whites to culminate into the suburbs (essentially to keep their kids from having to go to school with minorities) and middle class was a bad thing.
Since the rallying cries of the opponents to affirmative action tend to be things like "merit only" or "colorblind," I don't see how that implies they approve of systems that weren't merit only and weren't colorblind. Is that your best shot?

Right, keep the privilege we gain through that practice. Ignore that said discrimination happened. Ignore that said discrimination now makes meritocracy impossible because we are privileged in that meritocracy because of previous racial practices. WE HAS PRIVILEGE. Fuck those who we unfairly kept out of the system. They should work hard like we didn't to achieve success. Of course, that'll be harder for them to do since we top the meritocracy.

Whitewashing history is fun. Until they start proposing how to fix the problem with meritocracy, then they really don't give a shit about previous racial practices. Don't give me this embracing "merit only" and "colorblind" means they were against those policies. They're benefiting from them and they seek no redress of the wrong done by them. Unless they're willing to give up their privilege or even recognize it, they endorse those policies.

@Corrupt: So, your solution to race based policies is de-facto race based policies under a different name?


The problem is, there's always going to be glitches in the system that throw off a perfectly balanced meritocracy for future generations. You're ALWAYS going to have the Paris Hiltons, etc., who would fail in a meritocracy except they were lucky in who their parents were.

Because systemic discrimination on the basis of race is exactly the same as getting lucky enough to have rich parents. Guess blacks were just unlucky is all. There's glitches and then there's design flaws.

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Re: BAMN vs. University of Michigan

Postby Aikanaro » Tue Jul 05, 2011 9:38 pm UTC

Jahoclave wrote:
Aikanaro wrote:
Spoiler:
Jahoclave wrote:
Vaniver wrote:
Jahoclave wrote:The thing I find really funny about racially based selections or things like affirmative action is that nobody who is against them now seems to be raising a huge fuss about how racially based selections and affirmative action of the 1930s in towards the post WWII socialism that allowed whites to culminate into the suburbs (essentially to keep their kids from having to go to school with minorities) and middle class was a bad thing.
Since the rallying cries of the opponents to affirmative action tend to be things like "merit only" or "colorblind," I don't see how that implies they approve of systems that weren't merit only and weren't colorblind. Is that your best shot?

Right, keep the privilege we gain through that practice. Ignore that said discrimination happened. Ignore that said discrimination now makes meritocracy impossible because we are privileged in that meritocracy because of previous racial practices. WE HAS PRIVILEGE. Fuck those who we unfairly kept out of the system. They should work hard like we didn't to achieve success. Of course, that'll be harder for them to do since we top the meritocracy.

Whitewashing history is fun. Until they start proposing how to fix the problem with meritocracy, then they really don't give a shit about previous racial practices. Don't give me this embracing "merit only" and "colorblind" means they were against those policies. They're benefiting from them and they seek no redress of the wrong done by them. Unless they're willing to give up their privilege or even recognize it, they endorse those policies.

@Corrupt: So, your solution to race based policies is de-facto race based policies under a different name?


The problem is, there's always going to be glitches in the system that throw off a perfectly balanced meritocracy for future generations. You're ALWAYS going to have the Paris Hiltons, etc., who would fail in a meritocracy except they were lucky in who their parents were.

Because systemic discrimination on the basis of race is exactly the same as getting lucky enough to have rich parents. Guess blacks were just unlucky is all. There's glitches and then there's design flaws.

Define "systemic." As in, permeating the system, or an inherent PART of the system? If we implement a perfect meritocracy TODAY, RIGHT NOW, then as of the next generation, yes, the discrimination is exactly identical: it's a benefit or detriment based on who your parents were. Then it's a matter of what opportunities you have access to given the starting point you landed in and your own inherent abilities. Now, if race triggers OTHER factors, such as an employer not hiring you not because your parents couldn't afford to send you to college, but because he just doesn't like your skin color, etc., etc., THEN it's a different problem, and the system needs a rehaul.

Am I making any kind of sense, and you just disagree, or is this coming off as gibberish?
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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 9:50 pm UTC

Aikanaro wrote:
Jahoclave wrote:
Aikanaro wrote:
Spoiler:
Jahoclave wrote:
Vaniver wrote:
Jahoclave wrote:The thing I find really funny about racially based selections or things like affirmative action is that nobody who is against them now seems to be raising a huge fuss about how racially based selections and affirmative action of the 1930s in towards the post WWII socialism that allowed whites to culminate into the suburbs (essentially to keep their kids from having to go to school with minorities) and middle class was a bad thing.
Since the rallying cries of the opponents to affirmative action tend to be things like "merit only" or "colorblind," I don't see how that implies they approve of systems that weren't merit only and weren't colorblind. Is that your best shot?

Right, keep the privilege we gain through that practice. Ignore that said discrimination happened. Ignore that said discrimination now makes meritocracy impossible because we are privileged in that meritocracy because of previous racial practices. WE HAS PRIVILEGE. Fuck those who we unfairly kept out of the system. They should work hard like we didn't to achieve success. Of course, that'll be harder for them to do since we top the meritocracy.

Whitewashing history is fun. Until they start proposing how to fix the problem with meritocracy, then they really don't give a shit about previous racial practices. Don't give me this embracing "merit only" and "colorblind" means they were against those policies. They're benefiting from them and they seek no redress of the wrong done by them. Unless they're willing to give up their privilege or even recognize it, they endorse those policies.

@Corrupt: So, your solution to race based policies is de-facto race based policies under a different name?


The problem is, there's always going to be glitches in the system that throw off a perfectly balanced meritocracy for future generations. You're ALWAYS going to have the Paris Hiltons, etc., who would fail in a meritocracy except they were lucky in who their parents were.

Because systemic discrimination on the basis of race is exactly the same as getting lucky enough to have rich parents. Guess blacks were just unlucky is all. There's glitches and then there's design flaws.

Define "systemic." As in, permeating the system, or an inherent PART of the system? If we implement a perfect meritocracy TODAY, RIGHT NOW, then as of the next generation, yes, the discrimination is exactly identical: it's a benefit or detriment based on who your parents were. Then it's a matter of what opportunities you have access to given the starting point you landed in and your own inherent abilities. Now, if race triggers OTHER factors, such as an employer not hiring you not because your parents couldn't afford to send you to college, but because he just doesn't like your skin color, etc., etc., THEN it's a different problem, and the system needs a rehaul.

Am I making any kind of sense, and you just disagree, or is this coming off as gibberish?

Both actually. One leads to the other. And no, the next generation is not identical because the previous generation wasn't. One of the reasons blacks tend to be clustered in the inner city is because of the AHA's refusal to lend to them. Ergo, whites developed equity in their homes whereas blacks did not. Thus blacks do not have the equity to pass on to future generations. That lack of equity causes other issues, making it harder to achieve success. So not only do you not get hired for not going to college, but your reason for not going to college is because the government discriminated against you based on race.

Just saying that the problem will be corrected if we suddenly go to a meritocracy is more than just wishful thinking, it's praying for a damn miracle.

Group A has lots of privilege. Group B does not. Group A has that privilege because government discriminated against group B. Government switches to meritocracy. Group A benefits most from the meritocracy because they had the government granted privilege to start with. Group B suffers because their lack of privileged means a lack of merit. Ergo, the meritocracy is discriminatory because the government did not redress its previous discrimination to group B.

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Re: BAMN vs. University of Michigan

Postby TheGrammarBolshevik » Tue Jul 05, 2011 9:55 pm UTC

Vaniver wrote:
Silknor wrote:But if some other group (for example, LGBT people) wanted a non-discrimination protection in real estate, they would only need it approved by the City Council. So according to the Supreme Court, the amendment ran afoul of the Equal Protection Clause by placing a higher burden on a certain minority group.
That is, they cannot ban discrimination based on race because they did not also ban discrimination based on sexual orientation (or any other conceivable status)?

No. They cannot impose a higher legislative burden on efforts to ban discrimination based on race than they can on efforts to ban discrimination based on sexual orientation. The problem is not that one ban was issued while the other was not, but that the latter ban was actually required (as a matter of policy, rather than of voter discretion) to meet a higher standard.
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Re: BAMN vs. University of Michigan

Postby Aikanaro » Tue Jul 05, 2011 10:01 pm UTC

@ Jahoclave: Ah, but that's what I meant about it being identical to having rich parents: You can define Group A and Group B as anything; it could be "People with parents who won the lottery" vs "People with parents who were dirt poor." No matter HOW you try and parse it, there's going to be a randomization factor, and that factor is going to throw a wrench in the works of a meritocracy. The only way to remove it entirely is to also remove ANY benefit or detriment one could conceivably receive from their parents, such as a system where everyone is raised by the state, or some such. If group A is "people with parents who decided to become school teachers," then group A is more likely to go to college, thus have the money so that their KIDS are more likely to go to college, etc. Having a level playing field is an admirable goal, but there are more factors in Nature vs Nurture, as it were, than JUST race.
EDIT: This isn't meant to downplay the degree to which race is an overwhelming factor in the current state; I'm well aware it is. But where is the line drawn in balancing things? How do you even decide when AA has gone on long enough, and you can just let things run their course?
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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 10:07 pm UTC

Aikanaro wrote:@ Jahoclave: Ah, but that's what I meant about it being identical to having rich parents: You can define Group A and Group B as anything; it could be "People with parents who won the lottery" vs "People with parents who were dirt poor." No matter HOW you try and parse it, there's going to be a randomization factor, and that factor is going to throw a wrench in the works of a meritocracy. The only way to remove it entirely is to also remove ANY benefit or detriment one could conceivably receive from their parents, such as a system where everyone is raised by the state, or some such. If group A is "people with parents who decided to become school teachers," then group A is more likely to go to college, thus have the money so that their KIDS are more likely to go to college, etc. Having a level playing field is an admirable goal, but there are more factors in Nature vs Nurture, as it were, than JUST race.
EDIT: This isn't meant to downplay the degree to which race is an overwhelming factor in the current state; I'm well aware it is. But where is the line drawn in balancing things? How do you even decide when AA has gone on long enough, and you can just let things run their course?

The difference is that the lottery isn't discriminating about who wins. While there is a case to be made about wealth generation, it's not nearly the same as the systemic government discrimination against blacks in this country. In this case it's not just received from their parents, it's government sanctioned based on their race. Just because we're a few generations down doesn't mean that discrimination originally practiced was fixed.

A few metrics like graduation rates and poverty might be a couple of indicators. After all, if we're equal then their shouldn't be large disproportional results between blacks and whites.

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Re: BAMN vs. University of Michigan

Postby folkhero » Tue Jul 05, 2011 10:09 pm UTC

Jahoclave wrote:Group A has lots of privilege. Group B does not. Group A has that privilege because government discriminated against group B. Government switches to meritocracy. Group A benefits most from the meritocracy because they had the government granted privilege to start with. Group B suffers because their lack of privileged means a lack of merit. Ergo, the meritocracy is discriminatory because the government did not redress its previous discrimination to group B.

But not everyone in group A actually does have an advantage from the government's previous discrimination. Some people had parents who were poor and poorly educated despite the government giving them all the advantages. Lets call this subgroup of A "A1." Now People in A1 have none of the advantages of the past discrimination because their parents and grandparents didn't take advantage of it. If the government tries to right it's previous wrong by giving group B advantages over group A, then the people who are in group A1 are doubly disadvantaged, and are probably wondering what happened to, "No State shall...deny to any person within its jurisdiction the equal protection of the laws."
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Re: BAMN vs. University of Michigan

Postby Silknor » Tue Jul 05, 2011 10:11 pm UTC

Vaniver wrote:
Silknor wrote:But if some other group (for example, LGBT people) wanted a non-discrimination protection in real estate, they would only need it approved by the City Council. So according to the Supreme Court, the amendment ran afoul of the Equal Protection Clause by placing a higher burden on a certain minority group.
That is, they cannot ban discrimination based on race because they did not also ban discrimination based on sexual orientation (or any other conceivable status)?


Just to clear up any ambiguity since I'm not sure if you switched from talking about Hunter to the current BAMN case: In Hunter the court found unconstitutional an amendment that banned the City Council from regulating real estate on the basis of race (and religion, etc) without each ordinance being approved by referendum. The point of the original amendment was not to ban discrimination on the basis of race, but ensure that the City Council would not be able to stop owners of real estate from being able to discriminate on the basis of race.

That said, one of the requirements of the Hunter test was that the law have a "racial focus", from the 6th Circuit's majority opinion:
The first prong of the Hunter/Seattle test requires us to determine whether Proposal 2 has a “racial focus.” See Seattle, 458 U.S. at 473. The Court explained that the question is not whether “members of the racial majority both favored and benefited from” the program or policy at issue, but whether the policy targeted by the law “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.” Id. at 472.


Despite a requirement of racial focus though, the law need not be motivated by purposeful racial discrimination. While I don't know if technically accurate, there is truth to your statement as I understand the Court's decision. If the amendment in Hunter had been neutral, in that it simply stripped the City Council of the authority to pass any ordinance regarding real estate without it being first approved by referendum, then it would have been constitutional. I suppose the analogous "neutral" version of Proposal 2 would be one requiring admissions committees at public universities to only consider criteria approved by the state legislature. At the crux of the issue is removing the ability of one group to lobby for change they see as beneficial by making the process more difficult (eg. by setting a higher bar for the type of change that group would seek to effect, in this case by requiring that any race (or, while not apparently relevant to the case, gender) based preferences be approved by the legislature instead of either the legislature or the admissions committee).

I would think that such a neutral law, one which does not single out any particular minority group, would have passed muster. At the very least it would stand a better chance. So in a sense the answer to your question, I think, is yes: a genuinely neutral law to remove discretion from admissions committees and place all authority over admissions policy in the state legislature, that is, purely a procedural issue that does not not, in letter or spirit, single out a particular minority group to make it more difficult for them to achieve an admissions policy they see as favorable, should pass muster. (Were it neutral in letter but intended to single out a particular minority group, I can see where that could lead to problems though).

Edit: At the same time though, I think your statement is a problematic phrasing because I certainly do not see the court objecting to a referendum that banned discrimination against a minority race but not also against a minority sexual orientation (or other minority group). It's not banning discrimination against one, but not, all, minorities that is the problem, it's making it more difficult for one minority to effect change, but not for everyone (minority and majority).
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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 10:16 pm UTC

folkhero wrote:
Jahoclave wrote:Group A has lots of privilege. Group B does not. Group A has that privilege because government discriminated against group B. Government switches to meritocracy. Group A benefits most from the meritocracy because they had the government granted privilege to start with. Group B suffers because their lack of privileged means a lack of merit. Ergo, the meritocracy is discriminatory because the government did not redress its previous discrimination to group B.

But not everyone in group A actually does have an advantage from the government's previous discrimination. Some people had parents who were poor and poorly educated despite the government giving them all the advantages. Lets call this subgroup of A "A1." Now People in A1 have none of the advantages of the past discrimination because their parents and grandparents didn't take advantage of it. If the government tries to right it's previous wrong by giving group B advantages over group A, then the people who are in group A1 are doubly disadvantaged, and are probably wondering what happened to, "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

Meanwhile, because we what to pretend we're equal, group B is still disproportionately affected than group A. Or will there be no group B1 in your solution who would also be benefited equally by policies helping group A1? The point is, group B1 is disproportinately larger than A1 because of discriminatory policies. Ergo, to fix this problem policies should focus on equaling out this dispropotionality. Throw all the pointless roadblocks of poor white people you want at this, it's not going to alter the paradigm.

Or did we just chuck welfare out the window or something? Stop playing the ole discriminated against white people card. It's trite and revolves around them actually being discriminated against, which they aren't. When you check your privilege at the door, then I might care a bit more about that line of thought.

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Re: BAMN vs. University of Michigan

Postby thc » Tue Jul 05, 2011 10:17 pm UTC

@Corrupt: So, your solution to race based policies is de-facto race based policies under a different name?

De facto it is not. Or are you saying that everyone born into poverty is black or some other underrepresented minority? Not even close.

Even if it were de facto, you can't ignore the negative social effects AA has on both sides of the divide. I'm talking about increased racial tensions and resentment by the "majority", negative psychological effects on job performance and confidence of recipients, etc.

Can you say with confidence that AA even works?

I agree with corrupt that a program based on social status rather than race would be much better.

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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 10:25 pm UTC

thc wrote:
@Corrupt: So, your solution to race based policies is de-facto race based policies under a different name?

De facto it is not. Or are you saying that everyone born into poverty is black or some other underrepresented minority? Not even close.

Even if it were de facto, you can't ignore the negative social effects AA has on both sides of the divide. I'm talking about increased racial tensions and resentment by the "majority", negative psychological effects on job performance and confidence of recipients, etc.

Can you say with confidence that AA even works?

I agree with corrupt that a program based on social status rather than race would be much better.

Disproportionate is not all. Or, are you really suggesting that the failing, poor, urban schools he wants to send more money towards have equal racial makeups? They aren't. One of the reasons they aren't is racist government policies. And, nowhere did I say we didn't need both. The problem is, if you only have colorblind programs you do nothing to alter the disproportionate poverty rates.

Oh look, more "Oh no, white people's feelings are hurt because they are losing some of their privilege" arguments. The Tea Party called, they want their essentialist notions of American identity back.

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Re: BAMN vs. University of Michigan

Postby Vaniver » Tue Jul 05, 2011 10:33 pm UTC

TheGrammarBolshevik wrote:No. They cannot impose a higher legislative burden on efforts to ban discrimination based on race than they can on efforts to ban discrimination based on sexual orientation. The problem is not that one ban was issued while the other was not, but that the latter ban was actually required (as a matter of policy, rather than of voter discretion) to meet a higher standard.
You're describing the Hunter decision, right? I'm asking about the application of the Hunter decision to the case at hand.

Silknor wrote: It's not banning discrimination against one, but not, all, minorities that is the problem, it's making it more difficult for one minority to effect change, but not for everyone (minority and majority).
Which change are we talking about, here?

That is, is the problem with Prop 2 that it enforces color-blindness, or that it's difficult to repeal because it requires a voter referendum to repeal? If the second, then that seems to me like it takes the 'equal protection under the law' clause and turns it into 'equal ability to rewrite the law,' which seems like a horrendous perversion.

Jahoclave: I apologize for encouraging you by responding. Would you mind taking discussions of whether or not AA should exist to SB?
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Re: BAMN vs. University of Michigan

Postby Jahoclave » Tue Jul 05, 2011 10:38 pm UTC

Vaniver wrote:
Jahoclave: I apologize for encouraging you by responding. Would you mind taking discussions of whether or not AA should exist to SB?

As long as there is a recognition that the need for programs to address the issue are relevant to the issue of the case I have no problem with that. I.E. that attempts to institute color-blindness do not achieve equality or equal protection.

Not that you have to agree, just accept that their necessity is part of the formation of my position.

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Re: BAMN vs. University of Michigan

Postby thc » Tue Jul 05, 2011 11:00 pm UTC

Jahoclave wrote:Disproportionate is not all. Or, are you really suggesting that the failing, poor, urban schools he wants to send more money towards have equal racial makeups? They aren't. One of the reasons they aren't is racist government policies. And, nowhere did I say we didn't need both.

The text I quoted from you said nothing about proportions. You said "de facto race based policy" but a policy based on social status clearly isn't a race based policy because non-blacks/hispanics make up a huge fraction of people who live in poverty.

The problem is, if you only have colorblind programs you do nothing to alter the disproportionate poverty rates.
[Citation needed]

AA has been around for what, 60 years? Yet the relative poverty rates has remained basically the same, (or at most marginal progress).* Where is your evidence that AA works at all and does not in fact, have the opposite effect?

*http://www.census.gov/hhes/www/poverty/data/incpovhlth/1985/index.html

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Re: BAMN vs. University of Michigan

Postby Vaniver » Tue Jul 05, 2011 11:04 pm UTC

Jahoclave wrote:As long as there is a recognition that the need for programs to address the issue are relevant to the issue of the case I have no problem with that. I.E. that attempts to institute color-blindness do not achieve equality or equal protection.

Not that you have to agree, just accept that their necessity is part of the formation of my position.
I'm not sure we can agree here. I agree you think AA is desirable, but I don't think I can agree that equal protection really means unequal protection.
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Re: BAMN vs. University of Michigan

Postby Silknor » Tue Jul 05, 2011 11:08 pm UTC

Vaniver wrote:
Silknor wrote: It's not banning discrimination against one, but not, all, minorities that is the problem, it's making it more difficult for one minority to effect change, but not for everyone (minority and majority).
Which change are we talking about, here?

That is, is the problem with Prop 2 that it enforces color-blindness, or that it's difficult to repeal because it requires a voter referendum to repeal? If the second, then that seems to me like it takes the 'equal protection under the law' clause and turns it into 'equal ability to rewrite the law,' which seems like a horrendous perversion.


It's neither. The issue the 6th Circuit has with it is that it imposes a unequal procedural barrier, the impact of which falls primarily on a specific disadvantaged minority. It's not about being difficult to repeal, but rather that, given Proposal 2, there is an additional difficulty to pursing certain types of changes (eg, they must be approved at the state level instead of the level of an individual admissions committee).

Here's the full explanation from the majority opinion:
The Equal Protection Clause “guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute . . . that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner.”1 Seattle, 458 U.S. at 467. But the Equal Protection Clause reaches even further, and prohibits “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.”Id.(internal quotation marks andcitation omitted). “[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Hunter, 393 U.S. at 393.

The Supreme Court’s statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities. In effect, the political process theory hews to the unremarkable belief that, when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s course. Ensuring the fairness of political processes, in particular, is essential, because an electoral minority is by definition disadvantaged in its attempts to pass legislation; and “discrete and insular minorities” are especially so given the unique hurdles they face. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).


So it's not about Proposal 2 requiring a referendum to repeal. That's why it doesn't lead to the "equal opportunity to rewrite the law" you rightly object to. It's about special burdens (above and beyond the inherent size issue: smaller groups will have more difficulty passing legislation than bigger groups because they are smaller, but nothing in the opinion suggests that is a violation of the Equal Protection Clause).

Now, as the dissent argues, I think there's plenty of ground to doubt if Proposal 2 does in fact impose these special burdens, primarily because it's not clear if lobbying unaccountable (and thus likely unresponsive) admissions committees to write rules that favor your group is a possible or effective means of influence.
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Re: BAMN vs. University of Michigan

Postby *bird » Tue Jul 05, 2011 11:54 pm UTC

Vaniver wrote:
Jahoclave wrote:As long as there is a recognition that the need for programs to address the issue are relevant to the issue of the case I have no problem with that. I.E. that attempts to institute color-blindness do not achieve equality or equal protection.

Not that you have to agree, just accept that their necessity is part of the formation of my position.
I'm not sure we can agree here. I agree you think AA is desirable, but I don't think I can agree that equal protection really means unequal protection.


So you don't believe that inherent biases exist? That the way a name sounds on a resume could cause an employer to evaluate a resume differently?

Equal protection doesn't protect against any of that. What's your solution then?

EDIT: Also, Steve Sailer essentially argues for racial essentialism without much evidence, so I don't think he's a credible source.

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Re: BAMN vs. University of Michigan

Postby CorruptUser » Wed Jul 06, 2011 12:00 am UTC

There's a little thing called regression. Your descendants are not expected to be as far from the average as you currently are. The rich do no get richer; they get replaced by new rich people. After a certain amount of time, the descendants of the currently rich will be indistinguishable from those currently dirt poor. Go back far enough, most people here were serfs or other types of slaves, rapists and victims, soldiers and mercenaries, kings and warlords, merchants and craftsman.

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Re: BAMN vs. University of Michigan

Postby scarecrovv » Wed Jul 06, 2011 12:13 am UTC

@Jahoclave (spoilered for going a bit more off topic and, in retrospect, ranting.)
Spoiler:
Bolding mine:
Jahoclave wrote:Right, keep the privilege we gain through that practice. Ignore that said discrimination happened. Ignore that said discrimination now makes meritocracy impossible because we are privileged in that meritocracy because of previous racial practices. WE HAS PRIVILEGE. Fuck those who we unfairly kept out of the system. They should work hard like we didn't to achieve success. Of course, that'll be harder for them to do since we top the meritocracy.

Whitewashing history is fun. Until they start proposing how to fix the problem with meritocracy, then they really don't give a shit about previous racial practices. Don't give me this embracing "merit only" and "colorblind" means they were against those policies. They're benefiting from them and they seek no redress of the wrong done by them. Unless they're willing to give up their privilege or even recognize it, they endorse those policies...

Jahoclave wrote:...When you check your privilege at the door, then I might care a bit more about that line of thought.

You've said this same thing several times now, with slightly differing wording, and its bothering me. I am a white male, and I admit that I've most likely had opportunities not available to everybody, due to my economic position at the starting gate. It is even possible that my ancestors were beneficiaries of racial discrimination, though I have no evidence that this was the case. That doesn't mean I haven't worked hard to get where I am. Speaking quite frankly, I'd say that the results I've gotten out are commensurate with the effort I have put in. Granted, in my childhood I did have time to devote to hobbies that developed into job skills, because I didn't have to walk to school uphill both ways. But that doesn't mean I didn't work hard to develop competence in my field, that I do not still work hard to get my career started off on the right foot, nor that I will not work hard to achieve my future goals.

So now, what do you want me to do? You toss about phrases like "When you check your privilege at the door". Please propose some specific things I can do to "check my privilege at the door". Shall I not take a job as good as I can get, and instead take something lower paying and more boring, just because I might be the indirect beneficiary of past wrongs? Shall I not give my hypothetical future children all the help I can give them, just to ensure that they start off in the same place as the rest of their generation? I know I'm quite possibly beating a strawman here, and for that I apologize, but just in case I'm not, I say bullshit. I am not responsible for actions of which I have no knowledge, carried out by people long dead, who might not even be related to me (assuming that people should be punished for the crimes of their relatives at all, which is also silly). I will take what I can get, and donate to charity however much I damn well please. I can envision no moral society which would not permit me this freedom.

I didn't really intend that to come off quite so much like a rant, but I don't like it when people generalize about me unfairly, damn it.

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Re: BAMN vs. University of Michigan

Postby Whimsical Eloquence » Wed Jul 06, 2011 1:00 am UTC

*bird wrote:So you don't believe that inherent biases exist? That the way a name sounds on a resume could cause an employer to evaluate a resume differently?

Equal protection doesn't protect against any of that. What's your solution then?


So the solution is to add more unequal bias? More Prejudice?

Why not just remove names - they're almost as irrelevant as statements about a persons race. Equip those making judgements with only necessary information to an applicant's merit. That way there can be no opportunity for discriminating.

On a somewhat separate note, I really quite object to those that seem to think this has anything to do with the whole Republic/Democracy distinction. While it's true it's wrong for the majority to restrict the rights of the minority that doesn't make any law passed by the majority (especially if it applies to the majority and minority equally) illegitimate. Rather, it means that there are certain things which should be beyond the political control (or at least, less so) of the majority. Constitutional Rights for instance. Failing to grant matrimonial equality is not wrong because the hetronormitive majority is legislating for the whole populace but rather because its denying equality.

I can appreciate the Courts logic in the abstract but I'm very unsure how it applies to this particular case? Perhaps there's something I'm missing.
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Re: BAMN vs. University of Michigan

Postby Vaniver » Wed Jul 06, 2011 1:37 am UTC

Silknor wrote:It's neither. The issue the 6th Circuit has with it is that it imposes a unequal procedural barrier, the impact of which falls primarily on a specific disadvantaged minority.
What procedural barrier is that? That they can't enact statutes that discriminate? Though I admit I find the line from the Hunter decision about beneficial legislation to be deeply troubling.

*bird wrote:EDIT: Also, Steve Sailer essentially argues for racial essentialism without much evidence, so I don't think he's a credible source.
Hence my linking of three sources, including the litigant he criticizes.
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Re: BAMN vs. University of Michigan

Postby Silknor » Wed Jul 06, 2011 2:32 am UTC

Vaniver wrote:
Silknor wrote:It's neither. The issue the 6th Circuit has with it is that it imposes a unequal procedural barrier, the impact of which falls primarily on a specific disadvantaged minority.
What procedural barrier is that? That they can't enact statutes that discriminate? Though I admit I find the line from the Hunter decision about beneficial legislation to be deeply troubling.


Before the amendment in question in Hunter:
The City Council can regulate real estate not on the basis of race* by majority vote
The City Council can regulate real estate on the basis of race (for example a law banning homeowners refusing to sell to someone because of their race) by majority vote

After:
The City Council can regulate real estate not on the basis of race by majority vote.
The City Council can regulate real estate on the basis of race by majority vote, but any such ordinance shall not take effect until approved by referendum.

*Only race was apparently at issue, the full list is: race, color, religion, national origin or ancestry

So before the amendment in question, a racial minority seeking a non-discrimination policy in real estate would have to convince the City Council to support them. A non-covered minority (perhaps LGBT persons) would have to do the same thing.

After the amendment, the non-covered minority still has to accomplish the same task. The racial minority by contrast now has to convince the City Council and then convince the general public to support it in a referendum (technically both groups could accomplish their goal by referendum without the City Council, but since that's always the same for both it's not relevant). You can see how this imposes an higher barrier on the racial minority in their pursuit of legislation they want (and yes, it's an oversimplification to talk about a group as a monolithic entity wanting one thing, but it doesn't matter here). Even if before the change, the racial and non-covered minority had the same political power, the same ability to effect their desired legislation, this is not the case after the change. The political process has been changed in a way that disadvantages a minority group through a racially focused law. That's Hunter.

Now it's questionable if that example analogizes well to the BAMN case. But we can certainly outline it in a similar way:
Before Proposal 2:
Admissions Committees and the State Legislature have the power to stop discrimination on the basis of race against under-represented racial* minorities or give those minorities special preference.
Admissions Committees and the State Legislature have the power to stop discrimination against under-represented minorities on the basis of some non-covered factor (again, say LGBT persons) or give those minorities special preference.

After Proposal 2:
Admissions Committees lose that power in the first case (race-related).
*This time it's race, gender, and possibly some other categories, but again only race is relevant.

So the procedural barrier is that a group seeking protection from discrimination or special preference on the basis of race is forced to go through the Legislature (again, or referendum, but that's irrelevant because it's the same for both groups), while the group seeking protection from discrimination or special preference in admissions on the basis of something not covered can go through the Legislature or lobby the Admissions Committee. Whereas before Proposal 2, both groups had the option of lobbying either the Admissions Committee or the Legislature, so the political process has been changed in order to make a racial minority less likely to accomplish its goals.

Now if you think that Affirmative Action programs are themselves discriminatory, as I know you do, then it makes sense you wouldn't accept the courts reasoning that the racial minority has been deprived of anything legitimate. Likewise for if you take the dissent's view that lobbying the unelected and unaccountable Admissions Committee is unrealistic and that the Admissions Committee is not a political institution. But hopefully it's clear what the Supreme Court is saying: you can't put up special barriers that have the effect of making a disadvantaged minority less able to accomplish their goals through the normal political process where those barriers have a racial focus.
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Re: BAMN vs. University of Michigan

Postby cjmcjmcjmcjm » Wed Jul 06, 2011 6:27 am UTC

I'm against this decision for the fact that it upholds affirmative action, but I would like to know if the court had any recommendations on how to make the law pass in a legal manner.
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Re: BAMN vs. University of Michigan

Postby Silknor » Wed Jul 06, 2011 6:54 am UTC

In general courts don't say the law would be fine if X aspect was changed because they try to keep rulings narrowly tailored. That said, the law failing the test (from Hunter and Seattle) only means that it must survive strict scrutiny. Laws dealing with race can meet this standard, but they must prove it is the law is "necessary to further a compelling state interest". However the court did not consider if this was the case because the State did not make such an argument.

The other main way I could see is by making the law broader so that it doesn't disadvantage a particular minority in the political process. I would think it would be possible to accomplish the goals of Proposal 2 (remove the discretion of admissions committees to implement race-based preferences) by removing just about all discretion from those committees. The crux of the majority opinion is that those advocating for consideration of racial factors have an additional burden placed on them beyond what those who are arguing for consideration of other factors have. If you deny everyone the ability to lobby the admissions committee to further their interests (by making the admissions committee basically powerless), then you don't create any special burden. This could be done, for example, by passing a law/referendum delineating all factors that may be considered, thus preventing admissions committees from giving preferential treatment to any group not listed. I don't think this would be a good way of doing admissions, but it seems more likely to survive the scrutiny of the majority in this case.
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