Supreme Court upholds Michigan affirmative action ban (2 Viewers)

[Rich Conway]

I don't think affirmative action works especially well. But I've never understood why conservatives tend to be so focused on it either. Very few of those who complain about it are likely to ever be affected by it. In terms of issues which have a real impact on the way most people live, this is a pretty minor one.

Some people have principles, and seek to right injustices even when said injustices affect others rather than themselves?

 

[Rove!]

[i####] with a Tim post count post.

Shocked... Shocked I tell you.

forum has improved so much more for me after I put him on ignore

 

[Sand]

Remedying the fact that the government prohibited one race of people for centuries from participating in the institutions that contribute to and create success and wealth in this country--education, family, religion, government itself, etc.--is obviously a compelling government interest.

Seriously. Go read the Harlan dissent and see if that jives with this thought.

Remember that this ruling doesn't abolish AA, it just allows the populace to vote to abolish it. It can exist in other states if the populace wants it.

 

[Dan Lambskin]

If you want to dig into the history of the case in Michigan Google Jennifer Gratz who was denied acceptance despite having better grades and test scores than some minorities

This has also recently become a hot topic around here due to Brooke Kimbrough being denied acceptance despite having a 3.5 GPA and scoring a 23 on her ACT

 

[IvanKaramazov]

Because I don't think racial classifications are solely an individual wrong. If I don't get into the law school of my choice, I suffer some degree of harm. If discrete and insular minorities are systematically excluded from top undergraduate schools, law schools, MBA programs etc., those communities are systematically disenfranchised from the sources of political and economic power in this country.

What are "communities" other than a collection of individuals?

To change the subject away from affirmative action, let's think about something new and completely different, like gay marriage. When gay marriage is outlawed, "the gay community" suffers, but only because individual gay people suffer. The one is just an aggregation of the other. It doesn't even help to say that single gay people suffer from the cognitive dissonance resulting from bans on gay marriage -- that psychological harm is only bad because it harms individuals. The reason why gay marriage bans should be overturned is because doing so is good for specific gay people (and other right-thinking folks), not because it benefits some amorphous blob of people.

 

[Sand]

scoring a 23 on her ACT

Is that any good these days? Damn tests have changed so much. In my day that was pretty meh. 30+ was considered good.

 

[igbomb]

scoring a 23 on her ACT

Is that any good these days? Damn tests have changed so much. In my day that was pretty meh. 30+ was considered good.

The ACT and the GPA are well below UM averages.

Gratz was a white female who sued because of the preference given to AA candidates.

Kimbrough is below the average accepted applicant but is claiming that she should be accepted because she is AA and the school lacks diversity. Basically the polar opposite of Gratz.

 

[Ramsay Hunt Experience]

Because I don't think racial classifications are solely an individual wrong. If I don't get into the law school of my choice, I suffer some degree of harm. If discrete and insular minorities are systematically excluded from top undergraduate schools, law schools, MBA programs etc., those communities are systematically disenfranchised from the sources of political and economic power in this country.

What are "communities" other than a collection of individuals?

To change the subject away from affirmative action, let's think about something new and completely different, like gay marriage. When gay marriage is outlawed, "the gay community" suffers, but only because individual gay people suffer. The one is just an aggregation of the other. It doesn't even help to say that single gay people suffer from the cognitive dissonance resulting from bans on gay marriage -- that psychological harm is only bad because it harms individuals. The reason why gay marriage bans should be overturned is because doing so is good for specific gay people (and other right-thinking folks), not because it benefits some amorphous blob of people.

Communities are indeed groups of people. When groups of people who are underrepresented in a democratic government suffer systemic discrimination, the argument goes, the harm that accumulates to that community is more than just the aggregate harm of individual instances of discrimination. This is not my original argument, by the way. It was first articulated in footnote four (I screwed up earlier) of a case called Carolene Products and then sketched out in great detail by John Hart Ely, who is one of the most influential American legal scholars. Here is the text of the last two paragraphs of that footnote, which is the genesis of the idea that the Equal Protection clause requires some government actions be subject to a greater degree of scrutiny than others:

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . .

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious . . . or national . . . or racial minorities . . . : whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. .

There is no argument that white males lack adequate representation in the political and economic decision making centers in this country. The harm from me not getting into law school is genuinely confined to me. There's no additional harm in white America being deprived a voice in the institutions that produce our leaders. And we should also be far less skeptical of any argument that the democratic process is an inadequate means for white males to protect their interests (because there a lots of white males). Reasonable people can differ over whether this is the appropriate insight to guide equal protection analysis, but it is indisputably the insight that actually created modern equal protection analysis.

Under that justification a statement like "all distinctions based upon race are repugnant under the law" is just wrong. The problem is not using racial categories. It's using racial categories against groups who lack adequate representation to protect themselves through the democratic process.

 

[Dan Lambskin]

http://www.freep.com/article/20140419/COL01/304190066/mitch-albom-university-of-michigan-brooke-kimbrough

When I asked Brooke why its wrong for U-M to set a similar bar (she was denied admission with below the U-M averages of a 3.6 GPA and a 23 on the ACT) she said U-M needed to represent the state. Blacks are about 14% of the population, so it should be 14% roughly.

I pointed out that whites were 79% of Michigans population, but officially 57% of U-Ms, so should we adjust that up? Thats ludicrous, she said, claiming it should only apply to minorities. I then noted U-M was 11% Asian American, but our state was only 2%. Should we adjust down?

I dont understand what youre asking, she said.

 

[timschochet]

The posts by Ramsey and Ivan are both excellent and represent the two opposing perspectives in this debate about as well as anyone can.

 

[Maurile Tremblay]

I think the current precedent has a serious case of what I'll call "johnjohn-itis." Someone with johnjohn-itis thinks the NAACP is every bit problematic as the KKK.

I don't think current precedent ignores the difference between NAACP-like things and KKK-like things. There are non-racist (as opposed to non-racial) reasons for the NAACP to exist. There are no non-racist reasons for the KKK to exist. Current precedent takes that factor into account by looking at the purpose of the state action in question.

I don't think racial classifications are solely an individual wrong. ... If discrete and insular minorities are systematically excluded from top undergraduate schools, law schools, MBA programs etc., those communities are systematically disenfranchised from the sources of political and economic power in this country.

As a matter of reality, you may be right. But there are a lot of links in that chain that should perhaps not be ingrained into the law. As I understand it, the argument is that blacks have been systematically denied educational and employment opportunities, and have therefore been systematically excluded from positions of influence in political, business, and social circles. As a result, black people in general -- not just those denied education or good jobs -- are inadequately represented because we've ended up with too few black politicians and business leaders. To correct this undesirable situation, we need to swing the pendulum back the other way for a while to help even things out.

The argument assumes that white politicians don't represent black communities as well as black politicians would, or that white business leaders don't cater to black communities as well as black business leaders would. As a matter of reality, that may well be true in general (though certainly not in all cases). But accepting these assumptions, and analogous ones, for constitutional purposes would seem to allow an awful lot of racial discrimination that denies people equal protection under the law. May certain cities enact poll-taxes just on white people? May presidential candidates receive different amounts of federal matching funds based on their skin color? Should the campaigns of white, black, and Hispanic senatorial candidates be subject to different contribution limits? Should SBA loans be offered at different interest rates according to a race-based schedule?

And that's what that short footnote in Carolene Products was trying to suggest.

As Scalia is fond of pointing out, the footnote explicitly refused to consider the matter.

 

[Rich Conway]

The posts by Ramsey and Ivan are both excellent and represent the two opposing perspectives in this debate about as well as anyone can.

You're really underselling Maurile's post.

 

[Ramsay Hunt Experience]

The argument assumes that white politicians don't represent black communities as well as black politicians would, or that white business leaders don't cater to black communities as well as black business leaders would. As a matter of reality, that may well be true in general (though certainly not in all cases). But accepting these assumptions, and analogous ones, for constitutional purposes would seem to allow an awful lot of racial discrimination that denies people equal protection under the law. May certain cities enact poll-taxes just on white people? May presidential candidates receive different amounts of federal matching funds based on their skin color? Should the campaigns of white, black, and Hispanic senatorial candidates be subject to different contribution limits? Should SBA loans be offered at different interest rates according to a race-based schedule?

I think everyone agrees that the answers to those questions are no. But I think that ignores the real question. "Does the democratic process sufficiently protect against all of those bad outcomes?" And I'd argue the answer is "yes." I can't imagine any of those measures passing. Nothing like them that have ever affected empowered majorities have ever passed. But we know that poll taxes and other forms of similarly terrible laws aimed at discrete and insular minorities have passed (and indeed have persisted for decades). Which is why increased scrutiny is warranted in those situations.

 

[Rove!]

The argument assumes that white politicians don't represent black communities as well as black politicians would, or that white business leaders don't cater to black communities as well as black business leaders would.
.

Regardless of how well or how poorly communities are served, I would think that increasing the amount of diversity at the higher tiers of power and earning would help to establish generational legacies of success that would help offset past inequities....

One can't underrate the symbolism too....

 

[SaintsInDome2006]

I finally skimmed through the opinions.

I was wondering how anyone could possibly dissent from the view that racial preferences aren't constitutionally required.

It turns out that's not what the dissenters were dissenting from. They agree that school boards should be free to enact race-blind admissions policies. What they disagree with is a referendum that takes racial preferences, and only racial preferences*, out of the school boards' hands, thus impermissibly placing race in its own special category.

I find the dissent entirely unpersuasive, but it's less stupid than I'd imagined it would be before I'd read it.

___

*The dissent mischaracterizes the referendum in this respect since it does not treat race uniquely: it also forbids preferences based on sex or national origin.

The argument assumes that white politicians don't represent black communities as well as black politicians would, or that white business leaders don't cater to black communities as well as black business leaders would. As a matter of reality, that may well be true in general (though certainly not in all cases). But accepting these assumptions, and analogous ones, for constitutional purposes would seem to allow an awful lot of racial discrimination that denies people equal protection under the law. May certain cities enact poll-taxes just on white people? May presidential candidates receive different amounts of federal matching funds based on their skin color? Should the campaigns of white, black, and Hispanic senatorial candidates be subject to different contribution limits? Should SBA loans be offered at different interest rates according to a race-based schedule?

I think everyone agrees that the answers to those questions are no. But I think that ignores the real question. "Does the democratic process sufficiently protect against all of those bad outcomes?" And I'd argue the answer is "yes." I can't imagine any of those measures passing. Nothing like them that have ever affected empowered majorities have ever passed. But we know that poll taxes and other forms of similarly terrible laws aimed at discrete and insular minorities have passed (and indeed have persisted for decades). Which is why increased scrutiny is warranted in those situations.

Still getting confused thinking from the dissent out of all this.

Why is it unconstitutional for a state by vote of the legislature or referendum to say that it won't have affirmative action in one or other area again?

School or university boards are just state entities after all, everything on a city or state administrative level is just "state" for purposes of the Constitution. Sotomayor - hysterically and shrilly I might add - seems to be saying they may not, by which she implies that AA is actually constitutionally mandated, ie it's unconstitutional to outlaw it.

The most surprising opinion came from Justice Stephen G. Breyer, who abandoned his usual liberal allies to vote with the majority, although he did not adopt the majority’s reasoning. The Constitution, he said, permits but does not require states to use race-conscious admissions for educational diversity.

In general, he said, “the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”

 

[SaintsInDome2006]

Aside from the constitutional issue, I think Sotomayor's behavior was unprofessional, just as was Pres. Obama's when he chastised the USSC at the SOTU, maybe even more so than Rep. Joe Wilson shouting "Liar!" at the same event given that we are talking about the President and a USSC Justice as opposed to just a lowly rep.

 

[Ramsay Hunt Experience]

Aside from the constitutional issue, I think Sotomayor's behavior was unprofessional, just as was Pres. Obama's when he chastised the USSC at the SOTU, maybe even more so than Rep. Joe Wilson shouting "Liar!" at the same event given that we are talking about the President and a USSC Justice as opposed to just a lowly rep.

This wouldn't even measure a .1 on the Richter scale compared to Scalia's dissents.

 

[SaintsInDome2006]

Aside from the constitutional issue, I think Sotomayor's behavior was unprofessional, just as was Pres. Obama's when he chastised the USSC at the SOTU, maybe even more so than Rep. Joe Wilson shouting "Liar!" at the same event given that we are talking about the President and a USSC Justice as opposed to just a lowly rep.

This wouldn't even measure a .1 on the Richter scale compared to Scalia's dissents.

Has he actually gotten up and read them in a pedantic manner?

Certainly seems like she was questioning the justices' openness and candor, as Roberts stated.

 

[Ramsay Hunt Experience]

Aside from the constitutional issue, I think Sotomayor's behavior was unprofessional, just as was Pres. Obama's when he chastised the USSC at the SOTU, maybe even more so than Rep. Joe Wilson shouting "Liar!" at the same event given that we are talking about the President and a USSC Justice as opposed to just a lowly rep.

This wouldn't even measure a .1 on the Richter scale compared to Scalia's dissents.

Has he actually gotten up and read them in a pedantic manner?

As recently as when he dissented in United States v. Windsor (the gay marriage case on DOMA) last June. He also did on Maryland v. King a few weeks earlier. It's not common, per se, but it happens a few times every term.

 

[SaintsInDome2006]

Aside from the constitutional issue, I think Sotomayor's behavior was unprofessional, just as was Pres. Obama's when he chastised the USSC at the SOTU, maybe even more so than Rep. Joe Wilson shouting "Liar!" at the same event given that we are talking about the President and a USSC Justice as opposed to just a lowly rep.

This wouldn't even measure a .1 on the Richter scale compared to Scalia's dissents.

Has he actually gotten up and read them in a pedantic manner?

As recently as when he dissented in United States v. Windsor (the gay marriage case on DOMA) last June. He also did on Maryland v. King a few weeks earlier. It's not common, per se, but it happens a few times every term.

Fair enough, his dissents in general are notorious. However, again, it's the part where she called out the intellectual honestly and integrity of her fellow justices out loud and in public that's a problem.

 

[Todd Andrews]

That argument is bull####.

Remedying the fact that the government prohibited one race of people for centuries from participating in the institutions that contribute to and create success and wealth in this country--education, family, religion, government itself, etc.--is obviously a compelling government interest.

I agree with your statement. However I don't believe that affirmative action in terms of college admissions is the best means of remedy.

I dont think it is the best means of remedy, but it certainly could be considered a legitimate tool in such a remedy.

Who is looking out for the poor white guy?

Still waiting

Well, since white people enslaved blacks in this country up until 1865, the grandson and granddaughter of someone who immigrated to the US from Germany in 1938 should be made to pay for it.

Good lord, I hope you are joking. I would think any legislation would need to be fair to the poor white kid from Ohio just as much as it is for African Americans. If it's not, then the said legislation must be racist in nature itself.

I suspect he is.

Affirmative Action is inherently racist. The question is whether it's justified in the larger context.

Racist?

Affirmative action doesn't bring with any statement of relative value of different races. It does not state nor imply that whites are inferior to blacks. It's not racist.

Sure it is, if that poor white kid from Ohio doesn't have the same advantages as the minority kid of color.

You dont know what racist means.

 

[SaintsInDome2006]

If you want to dig into the history of the case in Michigan Google Jennifer Gratz who was denied acceptance despite having better grades and test scores than some minorities

This has also recently become a hot topic around here due to Brooke Kimbrough being denied acceptance despite having a 3.5 GPA and scoring a 23 on her ACT

http://www.freep.com/article/20140419/COL01/304190066/mitch-albom-university-of-michigan-brooke-kimbrough

When I asked Brooke why its wrong for U-M to set a similar bar (she was denied admission with below the U-M averages of a 3.6 GPA and a 23 on the ACT) she said U-M needed to represent the state. Blacks are about 14% of the population, so it should be 14% roughly.

I pointed out that whites were 79% of Michigans population, but officially 57% of U-Ms, so should we adjust that up? Thats ludicrous, she said, claiming it should only apply to minorities. I then noted U-M was 11% Asian American, but our state was only 2%. Should we adjust down?

I dont understand what youre asking, she said.

Couple good points.

I do think a college or university should be able to look at a student and say there is value, real personal quality beyond just academic grades if they overcome real disadvantages, that can include growing up in a tough neighborhood, dealing with adversity which includes racism and the effects of differences in how people of different races are viewed and the chances they get or don't get in society. Problem is I wonder if that happens in every single instance.

 

[Maurile Tremblay]

The argument assumes that white politicians don't represent black communities as well as black politicians would, or that white business leaders don't cater to black communities as well as black business leaders would. As a matter of reality, that may well be true in general (though certainly not in all cases). But accepting these assumptions, and analogous ones, for constitutional purposes would seem to allow an awful lot of racial discrimination that denies people equal protection under the law. May certain cities enact poll-taxes just on white people? May presidential candidates receive different amounts of federal matching funds based on their skin color? Should the campaigns of white, black, and Hispanic senatorial candidates be subject to different contribution limits? Should SBA loans be offered at different interest rates according to a race-based schedule?

I think everyone agrees that the answers to those questions are no. But I think that ignores the real question. "Does the democratic process sufficiently protect against all of those bad outcomes?" And I'd argue the answer is "yes." I can't imagine any of those measures passing. Nothing like them that have ever affected empowered majorities have ever passed. But we know that poll taxes and other forms of similarly terrible laws aimed at discrete and insular minorities have passed (and indeed have persisted for decades). Which is why increased scrutiny is warranted in those situations.

People sometimes sloppily refer to blacks as a protected class, when what they really mean is that race is a suspect classification. The same constitutional test is applied when the state discriminates against whites as when the state discriminates against blacks -- it's just that the test is more likely to be satisfied in the first case (because the discrimination is less likely to be invidious).

It sounds like you're arguing for a constitutional interpretation that considers classes rather than classifications -- that applies different tests depending on which ethnic group is being discriminated against.

The idea makes some sense for the reason you mention: majorities are harder to exploit through democratic means than are minorities, and therefore require less protection.

I dislike the idea, however, for two main reasons. First, the equal protection clause guarantees everyone equal protection under the law. Granting people unequal levels of protection under the equal protection clause constitutes good irony, but bad reading comprehension, IMO. Second, things get complicated fast when they are not simply black and white. Take affirmative action, for example. Asians are as discrete as blacks are, and probably more insular. With an equal protection clause that makes some ethnic groups more equal than others, where do they rank?

 

[JohnnyU]

You dont know what racist means.

I know what it means in this context for sure and AA is racist if it puts little dirt poor white Charlie from Ironton, Ohio at a disadvantage because of the color of his skin.

 

[Ramsay Hunt Experience]

I dislike the idea, however, for two main reasons. First, the equal protection clause guarantees everyone equal protection under the law. Granting people unequal levels of protection under the equal protection clause constitutes good irony, but bad reading comprehension, IMO. Second, things get complicated fast when they are not simply black and white. Take affirmative action, for example. Asians are as discrete as blacks are, and probably more insular. With an equal protection clause that makes some ethnic groups more equal than others, where do they rank?

I thought you might make the first argument. Here's why I think you're wrong. As a practical matter, the equal protection clause doesn't guarantee everyone equal protection under the law. The University of Michigan doesn't have to admit everyone who wants to go. It's allowed to discriminate between smarter people and dumber people. Or more driven people and lazy people. Or between football players and non-football players. Or between legacies and non-legacies. Or, if Michigan wants to do means-based AA, between poor people and rich people. As you're pointed out before on this board, the government is allowed to discriminate based on a whole host of reasons.

But when the SCOTUS decided what classifications were suspect, it's reasoning was derived from Carolene Products. SCOTUS said, "because discrete and insular minorities are most vulnerable for this reason, then classifications like race, national origin, family status (and after some hand-wringing, gender) are subject to heightened scrutiny." Now, none of that is self-evident from the text of the Equal Protection Clause. It's all a judicial gloss based on Carolene Products. But that judicial gloss is now used to say that because we choose these classifications that were based on their relationship to insular, discrete minorities that may lack access to the political process attempts to help these discrete and insular minorities through policies that take these classifications into account are impermissible. To steal your expression, that constitutes good irony.

 

[Maurile Tremblay]

Here's why I think you're wrong. As a practical matter, the equal protection clause doesn't guarantee everyone equal protection under the law. The University of Michigan doesn't have to admit everyone who wants to go. It's allowed to discriminate between smarter people and dumber people. Or more driven people and lazy people. Or between football players and non-football players. Or between legacies and non-legacies. Or, if Michigan wants to do means-based AA, between poor people and rich people. As you're pointed out before on this board, the government is allowed to discriminate based on a whole host of reasons.

People are not entitled to equal treatment under the law, but they are entitled to equal protection. The Constitution as currently interpreted affords smarter people and dumber people the same protection: it requires the University of Michigan to have an equally good reason to discriminate against either. Same with driven people and lazy people, football players and non-football players, legacies and non-legacies, Christians and Muslims, whites and blacks.

Certain classifications are more suspect than others; but for any given classification, each class -- which is to say, each person within each class -- is entitled to equal constitutional protection. It's not strict scrutiny for Muslims and rational basis for Christians. Because that would be messed up.

 

[Todd Andrews]

You dont know what racist means.

I know what it means in this context for sure and AA is racist if it puts little dirt poor white Charlie from Ironton, Ohio at a disadvantage because of the color of his skin.

Um no. That may be racial, but it isnt racist.

 

[JohnnyU]

You dont know what racist means.

I know what it means in this context for sure and AA is racist if it puts little dirt poor white Charlie from Ironton, Ohio at a disadvantage because of the color of his skin.

Um no. That may be racial, but it isnt racist.

denying someone because of the color of their skin and accepting someone else for the same reason, is racism, but you already know this. Since you're a last word kind of guy, go ahead and say something witty again and I won't respond.

 

[Ramsay Hunt Experience]

Here's why I think you're wrong. As a practical matter, the equal protection clause doesn't guarantee everyone equal protection under the law. The University of Michigan doesn't have to admit everyone who wants to go. It's allowed to discriminate between smarter people and dumber people. Or more driven people and lazy people. Or between football players and non-football players. Or between legacies and non-legacies. Or, if Michigan wants to do means-based AA, between poor people and rich people. As you're pointed out before on this board, the government is allowed to discriminate based on a whole host of reasons.

People are not entitled to equal treatment under the law, but they are entitled to equal protection. The Constitution as currently interpreted affords smarter people and dumber people the same protection: it requires the University of Michigan to have an equally good reason to discriminate against either. Same with driven people and lazy people, football players and non-football players, legacies and non-legacies, Christians and Muslims, whites and blacks.

If all that is required is equal scrutiny, then we could satisfy equal protection by doing every analysis under rational basis.

Certain classifications are more suspect than others; but for any given classification, each class -- which is to say, each person within each class -- is entitled to equal constitutional protection. It's not strict scrutiny for Muslims and rational basis for Christians. Because that would be messed up.

That's only because you're accepting dividing along classifications in the first place. Christians and Muslims would face the same test.

Are they a discrete and insular minority that lacks enough meaningful participation in the political process?

If yes, heightened scrutiny. If no, rational basis. I don't think that's messed up. I think that simply reflects the reality that we should recognize the superior institutional competency of legislatures to make policy decisions unless there are conditions that give rise to reason to doubt that competency.

 

[SaintsInDome2006]

From the NYT article posted further up:

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

I read Ramsey and perhaps Tood and a few others advocating for AA and I feel like we have hardly advanced in 100+ years.

This is from the majority decision in Plessy vs Ferguson, forgive the antiquated terminology and phraseology:

That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

This is from 1892. Keep in mind no one could tell if he was "black" or "white", he simply was able to sit in the "white" section, no one noticed he wasn't white, then he volunteered that he was actually "black."

I would like someone in favor of the AA law in MI to explain whether they think a Homer Plessy living in MI today, say in a wealthy suburb like Grosse Pointe, applying to the University of Michigan today with a GPA lower than most, would be favored or hurt in applying to go to Big Blue by an affirmative action law in Michigan - that is, which side of the line would you as a member of the controlling board that handle admissions put him on, the "white" or "black" and explain exactly why and how you would implement this. Really curious how far we have come.

{Edited to make it clear I am talking about a modern admissions situation, no one cares about railroad seating anymore}.

 

[Ramsay Hunt Experience]

From the NYT article posted further up:

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

I read Ramsey and perhaps Tood and a few others advocating for AA and I feel like we have hardly advanced in 100+ years.

This is from the majority decision in Plessy vs Ferguson, forgive the antiquated terminology and phraseology:

That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

This is from 1892. Keep in mind no one could tell if he was "black" or "white", he simply was able to sit in the "white" section, no one noticed he wasn't white, then he volunteered that he was actually "black."

I would like someone in favor of the AA law in MI to explain whether they think a Homer Plessy living in MI today, say in a wealthy suburb like Grosse Pointe, would be favored or hurt by an affirmative action law in Michigan - that is, which side of the line would you as a member of the controlling board that handle admissions put him on, the "white" or "black" and explain exactly why and how you would implement this. Really curious how far we have come.

I think this would be a simple case even without an equal protection doctrine. Railroad car segregation serves no legitimate government purpose and should not withstand rational basis review. No heightened scrutiny required.

It is interesting that you chose to focus on Plessey's mixed race. Homer Plessey was chosen by a committee of creole citizens to challenge the Separate Car Act. They went to the trouble of informing the railroad of what Plessey was going to do and then hiring a private detective to arrest and detain Plessey in order to ensure that he was charged. He basically had to create standing. As a practical matter, I don't think it would be a problem if the law treated him differently than someone who was actually burdened in fact by the Separate Car Act.

 

[SaintsInDome2006]

From the NYT article posted further up:

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

I read Ramsey and perhaps Tood and a few others advocating for AA and I feel like we have hardly advanced in 100+ years.

This is from the majority decision in Plessy vs Ferguson, forgive the antiquated terminology and phraseology:

That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

This is from 1892. Keep in mind no one could tell if he was "black" or "white", he simply was able to sit in the "white" section, no one noticed he wasn't white, then he volunteered that he was actually "black."

I would like someone in favor of the AA law in MI to explain whether they think a Homer Plessy living in MI today, say in a wealthy suburb like Grosse Pointe, would be favored or hurt by an affirmative action law in Michigan - that is, which side of the line would you as a member of the controlling board that handle admissions put him on, the "white" or "black" and explain exactly why and how you would implement this. Really curious how far we have come.

I think this would be a simple case even without an equal protection doctrine. Railroad car segregation serves no legitimate government purpose and should not withstand rational basis review. No heightened scrutiny required.

It is interesting that you chose to focus on Plessey's mixed race. Homer Plessey was chosen by a committee of creole citizens to challenge the Separate Car Act. They went to the trouble of informing the railroad of what Plessey was going to do and then hiring a private detective to arrest and detain Plessey in order to ensure that he was charged. He basically had to create standing. As a practical matter, I don't think it would be a problem if the law treated him differently than someone who was actually burdened in fact by the Separate Car Act.

Ramsey, I'm not talking about if he got in a railroad car.

I'm talking about if he applied to the University of Michigan with a GPA lower than most in a situation where affirmative action was in effect for admissions.

 

[Ramsay Hunt Experience]

From the NYT article posted further up:

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

I read Ramsey and perhaps Tood and a few others advocating for AA and I feel like we have hardly advanced in 100+ years.

This is from the majority decision in Plessy vs Ferguson, forgive the antiquated terminology and phraseology:

That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

This is from 1892. Keep in mind no one could tell if he was "black" or "white", he simply was able to sit in the "white" section, no one noticed he wasn't white, then he volunteered that he was actually "black."

I would like someone in favor of the AA law in MI to explain whether they think a Homer Plessy living in MI today, say in a wealthy suburb like Grosse Pointe, would be favored or hurt by an affirmative action law in Michigan - that is, which side of the line would you as a member of the controlling board that handle admissions put him on, the "white" or "black" and explain exactly why and how you would implement this. Really curious how far we have come.

I think this would be a simple case even without an equal protection doctrine. Railroad car segregation serves no legitimate government purpose and should not withstand rational basis review. No heightened scrutiny required.

It is interesting that you chose to focus on Plessey's mixed race. Homer Plessey was chosen by a committee of creole citizens to challenge the Separate Car Act. They went to the trouble of informing the railroad of what Plessey was going to do and then hiring a private detective to arrest and detain Plessey in order to ensure that he was charged. He basically had to create standing. As a practical matter, I don't think it would be a problem if the law treated him differently than someone who was actually burdened in fact by the Separate Car Act.

Ramsey, I'm not talking about if he got in a railroad car.

I'm talking about if he applied to the University of Michigan with a GPA lower than most in a situation where affirmative action was in effect for admissions.

Then what you're talking about is irrelevant, IMO. It's just the same argument that AA benefits recent immigrants as well as the descendents of slaves. But nobody challenges the specific person getting in under AA. They challenge the policy. Because I think policies that burden groups with full participation in the political process should be evaluated under a rational basis review, I don't think it's a big problem that a policy is "overbroad". Laws and policies reviewed under rational basis review needn't be narrowly tailored.

What has happened in Michigan confirms my point. Michigan changed its laws. As I've said several times in this thread, I believe Michigan has every right to do so (i.e., I would not have joined Sotomayor's dissent) because color-blind policies are not directed at any minority and thus pass rational basis review. But I also believe that Michigan should have every right to pass laws (or for the University of Michigan to adopt policies) that give preferences to racial minorities because I think the attempt to ameliorate the effect of years of invidious racial discrimination is a legitimate government interest that easily survives rational basis review. This is the way that equal protection should work, IMO. It's also an approach that harmonizes the best, IMO, with what we know of the Congress that passed the 14th Amendment (a Congress that simultaneously passed several federal programs that granted racial preferences).

 

[SaintsInDome2006]

From the NYT article posted further up:

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

I read Ramsey and perhaps Tood and a few others advocating for AA and I feel like we have hardly advanced in 100+ years.

This is from the majority decision in Plessy vs Ferguson, forgive the antiquated terminology and phraseology:

That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

This is from 1892. Keep in mind no one could tell if he was "black" or "white", he simply was able to sit in the "white" section, no one noticed he wasn't white, then he volunteered that he was actually "black."

I would like someone in favor of the AA law in MI to explain whether they think a Homer Plessy living in MI today, say in a wealthy suburb like Grosse Pointe, would be favored or hurt by an affirmative action law in Michigan - that is, which side of the line would you as a member of the controlling board that handle admissions put him on, the "white" or "black" and explain exactly why and how you would implement this. Really curious how far we have come.

I think this would be a simple case even without an equal protection doctrine. Railroad car segregation serves no legitimate government purpose and should not withstand rational basis review. No heightened scrutiny required.

It is interesting that you chose to focus on Plessey's mixed race. Homer Plessey was chosen by a committee of creole citizens to challenge the Separate Car Act. They went to the trouble of informing the railroad of what Plessey was going to do and then hiring a private detective to arrest and detain Plessey in order to ensure that he was charged. He basically had to create standing. As a practical matter, I don't think it would be a problem if the law treated him differently than someone who was actually burdened in fact by the Separate Car Act.

Ramsey, I'm not talking about if he got in a railroad car.

I'm talking about if he applied to the University of Michigan with a GPA lower than most in a situation where affirmative action was in effect for admissions.

Then what you're talking about is irrelevant, IMO. It's just the same argument that AA benefits recent immigrants as well as the descendents of slaves. But nobody challenges the specific person getting in under AA. They challenge the policy. Because I think policies that burden groups with full participation in the political process should be evaluated under a rational basis review, I don't think it's a big problem that a policy is "overbroad". Laws and policies reviewed under rational basis review needn't be narrowly tailored.

What has happened in Michigan confirms my point. Michigan changed its laws. As I've said several times in this thread, I believe Michigan has every right to do so (i.e., I would not have joined Sotomayor's dissent) because color-blind policies are not directed at any minority and thus pass rational basis review. But I also believe that Michigan should have every right to pass laws (or for the University of Michigan to adopt policies) that give preferences to racial minorities because I think the attempt to ameliorate the effect of years of invidious racial discrimination is a legitimate government interest that easily survives rational basis review. This is the way that equal protection should work, IMO. It's also an approach that harmonizes the best, IMO, with what we know of the Congress that passed the 14th Amendment (a Congress that simultaneously passed several federal programs that granted racial preferences).

The policy is based by including or excluding who it applies to up front, it is inherently irrational in that inclusion/exclusion process, which is the very reason it has been struck down in so many forms so many times.

You still haven't said if you would admit Plessy to U of M under an AA program. Would you?

 

[Ramsay Hunt Experience]

From the NYT article posted further up:

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

I read Ramsey and perhaps Tood and a few others advocating for AA and I feel like we have hardly advanced in 100+ years.

This is from the majority decision in Plessy vs Ferguson, forgive the antiquated terminology and phraseology:

That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

This is from 1892. Keep in mind no one could tell if he was "black" or "white", he simply was able to sit in the "white" section, no one noticed he wasn't white, then he volunteered that he was actually "black."

I would like someone in favor of the AA law in MI to explain whether they think a Homer Plessy living in MI today, say in a wealthy suburb like Grosse Pointe, would be favored or hurt by an affirmative action law in Michigan - that is, which side of the line would you as a member of the controlling board that handle admissions put him on, the "white" or "black" and explain exactly why and how you would implement this. Really curious how far we have come.

I think this would be a simple case even without an equal protection doctrine. Railroad car segregation serves no legitimate government purpose and should not withstand rational basis review. No heightened scrutiny required.

It is interesting that you chose to focus on Plessey's mixed race. Homer Plessey was chosen by a committee of creole citizens to challenge the Separate Car Act. They went to the trouble of informing the railroad of what Plessey was going to do and then hiring a private detective to arrest and detain Plessey in order to ensure that he was charged. He basically had to create standing. As a practical matter, I don't think it would be a problem if the law treated him differently than someone who was actually burdened in fact by the Separate Car Act.

Ramsey, I'm not talking about if he got in a railroad car.

I'm talking about if he applied to the University of Michigan with a GPA lower than most in a situation where affirmative action was in effect for admissions.

Then what you're talking about is irrelevant, IMO. It's just the same argument that AA benefits recent immigrants as well as the descendents of slaves. But nobody challenges the specific person getting in under AA. They challenge the policy. Because I think policies that burden groups with full participation in the political process should be evaluated under a rational basis review, I don't think it's a big problem that a policy is "overbroad". Laws and policies reviewed under rational basis review needn't be narrowly tailored.

What has happened in Michigan confirms my point. Michigan changed its laws. As I've said several times in this thread, I believe Michigan has every right to do so (i.e., I would not have joined Sotomayor's dissent) because color-blind policies are not directed at any minority and thus pass rational basis review. But I also believe that Michigan should have every right to pass laws (or for the University of Michigan to adopt policies) that give preferences to racial minorities because I think the attempt to ameliorate the effect of years of invidious racial discrimination is a legitimate government interest that easily survives rational basis review. This is the way that equal protection should work, IMO. It's also an approach that harmonizes the best, IMO, with what we know of the Congress that passed the 14th Amendment (a Congress that simultaneously passed several federal programs that granted racial preferences).

The policy is based by including or excluding who it applies to up front, it is inherently irrational in that inclusion/exclusion process, which is the very reason it has been struck down in so many forms so many times.

You still haven't said if you would admit Plessy to U of M under an AA program. Would you?

I don't even understand the first paragraph of your post.

I am completely agnostic about whether I would admit Plessey. It's not my decision, it's the University of Michigan's decision. I think either decision is rational. They could adopt any number of policies but let's consider three.

1. A color-blind policy where race isn't considered. That's rational and I don't think a reviewing court should overturn.

2. A policy that considers anyone with 1/16th African blood or more as an African American who receives some preference in admissions. That's a policy with a rational relationship to ameliorating the effects of pernicious societal discrimination and which increases minority participation in a great state University. That's rational and I don't think a reviewing court should overturn. To the extent that policy burdens individual members of the racial majority, that racial majority has adequate participation in the political process to ensure that they can, if they wish, lobby the legislature to pas a law prohibiting this policy (which was what was done here).

3. A policy that considers anyone with 1/4th African blood or more as an African American who receives some preference in admissions. That's also (on first glance) a policy with a rational relationship to ameliorating the effects of pernicious societal discrimination and which increases minority participation in a great state University. But, if Homer Plessey could show that people like himself, with 1/8th African American blood are uniquely burdened by the policy (say there's a statistical analysis that shows a "donut" hole where people with small quantums of African blood are not getting admitted into college and not starting businesses or participating in the political process) then Homer Plessey could make a factual showing that heightened scrutiny is appropriate.

 

[SaintsInDome2006]

From the NYT article posted further up:

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

I read Ramsey and perhaps Tood and a few others advocating for AA and I feel like we have hardly advanced in 100+ years.

This is from the majority decision in Plessy vs Ferguson, forgive the antiquated terminology and phraseology:

That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

This is from 1892. Keep in mind no one could tell if he was "black" or "white", he simply was able to sit in the "white" section, no one noticed he wasn't white, then he volunteered that he was actually "black."

I would like someone in favor of the AA law in MI to explain whether they think a Homer Plessy living in MI today, say in a wealthy suburb like Grosse Pointe, would be favored or hurt by an affirmative action law in Michigan - that is, which side of the line would you as a member of the controlling board that handle admissions put him on, the "white" or "black" and explain exactly why and how you would implement this. Really curious how far we have come.

I think this would be a simple case even without an equal protection doctrine. Railroad car segregation serves no legitimate government purpose and should not withstand rational basis review. No heightened scrutiny required.

It is interesting that you chose to focus on Plessey's mixed race. Homer Plessey was chosen by a committee of creole citizens to challenge the Separate Car Act. They went to the trouble of informing the railroad of what Plessey was going to do and then hiring a private detective to arrest and detain Plessey in order to ensure that he was charged. He basically had to create standing. As a practical matter, I don't think it would be a problem if the law treated him differently than someone who was actually burdened in fact by the Separate Car Act.

Ramsey, I'm not talking about if he got in a railroad car.

I'm talking about if he applied to the University of Michigan with a GPA lower than most in a situation where affirmative action was in effect for admissions.

Then what you're talking about is irrelevant, IMO. It's just the same argument that AA benefits recent immigrants as well as the descendents of slaves. But nobody challenges the specific person getting in under AA. They challenge the policy. Because I think policies that burden groups with full participation in the political process should be evaluated under a rational basis review, I don't think it's a big problem that a policy is "overbroad". Laws and policies reviewed under rational basis review needn't be narrowly tailored.

What has happened in Michigan confirms my point. Michigan changed its laws. As I've said several times in this thread, I believe Michigan has every right to do so (i.e., I would not have joined Sotomayor's dissent) because color-blind policies are not directed at any minority and thus pass rational basis review. But I also believe that Michigan should have every right to pass laws (or for the University of Michigan to adopt policies) that give preferences to racial minorities because I think the attempt to ameliorate the effect of years of invidious racial discrimination is a legitimate government interest that easily survives rational basis review. This is the way that equal protection should work, IMO. It's also an approach that harmonizes the best, IMO, with what we know of the Congress that passed the 14th Amendment (a Congress that simultaneously passed several federal programs that granted racial preferences).

The policy is based by including or excluding who it applies to up front, it is inherently irrational in that inclusion/exclusion process, which is the very reason it has been struck down in so many forms so many times.

You still haven't said if you would admit Plessy to U of M under an AA program. Would you?

I don't even understand the first paragraph of your post.

I am completely agnostic about whether I would admit Plessey. It's not my decision, it's the University of Michigan's decision. I think either decision is rational. They could adopt any number of policies but let's consider three.

1. A color-blind policy where race isn't considered. That's rational and I don't think a reviewing court should overturn.

2. A policy that considers anyone with 1/16th African blood or more as an African American who receives some preference in admissions. That's a policy with a rational relationship to ameliorating the effects of pernicious societal discrimination and which increases minority participation in a great state University. That's rational and I don't think a reviewing court should overturn. To the extent that policy burdens individual members of the racial majority, that racial majority has adequate participation in the political process to ensure that they can, if they wish, lobby the legislature to pas a law prohibiting this policy (which was what was done here).

3. A policy that considers anyone with 1/4th African blood or more as an African American who receives some preference in admissions. That's also (on first glance) a policy with a rational relationship to ameliorating the effects of pernicious societal discrimination and which increases minority participation in a great state University. But, if Homer Plessey could show that people like himself, with 1/8th African American blood are uniquely burdened by the policy (say there's a statistical analysis that shows a "donut" hole where people with small quantums of African blood are not getting admitted into college and not starting businesses or participating in the political process) then Homer Plessey could make a factual showing that heightened scrutiny is appropriate.

Isn't Nos. 2-3 just the "one-drop" rule?

[SIZE=11pt]The 1910s were the nadir of the [/SIZE][SIZE=11pt]Jim Crow[/SIZE][SIZE=11pt] laws era by most measures. Tennessee adopted a one-drop statute in 1910. It was followed by Louisiana the same year, Texas and Arkansas in 1911, Mississippi in 1917, North Carolina in 1923, Virginia in 1924, Alabama and Georgia in 1927, and Oklahoma in 1931. During this same time, Florida, Indiana, Kentucky, Maryland, Missouri, Nebraska, North Dakota and Utah retained their old racial blood fraction statutes, but amended these fractions, such as one-eighth or one-sixteenth etc., to be equivalent to simply one drop of Negro blood, [/SIZE][SIZE=11pt]de facto[/SIZE][SIZE=11pt].[/SIZE][SIZE=11pt] By 1925, almost every state had some form of a one-drop law on the books. [/SIZE]

http://blackhistory.com/content/63228/one-drop-rule

How is that "rational"?

This is a picture of Homer Plessy:

http://cgtherapist.com/images/homer-plessy-i14.jpg

If Homer Plessy showed up at UM and went to register, wouldn't they say he wasn't black because he looked white? Couldn't he get in trouble for this because he stated on his application that he was black? Would he then have to prove his heritage somehow?

 

[Maurile Tremblay]

If yes, heightened scrutiny. If no, rational basis. I don't think that's messed up. I think that simply reflects the reality that we should recognize the superior institutional competency of legislatures to make policy decisions unless there are conditions that give rise to reason to doubt that competency.

I think the bold is where we differ. (I mean that as a joke -- in the "politicians are dumb" genre -- although the fact that I have to say so means that it probably isn't a very good one. But I also mean it seriously, given our different preferred interpretations of the Commerce Clause, and different views regarding the proper scope of government generally.)

In our limited democracy, I think the "limited" part is every bit as important as the "democracy" part.

I wonder whether this is still a left-right issue. Back in the 80s, when conservatives were still pissed about Griswold and Roe, and then in the 90s, when Robert Bork was promoting his book about how awesome legislatures are, and how courts should never meddle, it seemed like the right believed very strongly in majority rule, while the left believed very strongly in judicial review.

Have the roles reversed somewhat? More recently, we've got the right asking for Obamacare to be struck down, asking for racial preferences to be struck down, asking for gun-control laws to be struck down, asking for eminent domain to be restricted, and we have liberals touting the superior competency of legislatures.

 

[Dinsy Ejotuz]

liberals touting the superior competency of legislatures.

I'm probably just spacing, but I'm having trouble thinking of an example for this one?

I hate our current Supreme Court, but the answer to that isn't to ignore it IMO, it's to elect politicians that will appoint people I agree with. Or am I misunderstanding you here?

 

[Maurile Tremblay]

liberals touting the superior competency of legislatures.

I'm probably just spacing, but I'm having trouble thinking of an example for this one?

I took the phrase from Ramsay Hunt Experience, who I think would describe himself as a liberal. I guess part of my question is to what extent other liberals share the sentiment.

 

[TwinTurbo]

scoring a 23 on her ACT

Is that any good these days? Damn tests have changed so much. In my day that was pretty meh. 30+ was considered good.

Around 30% score higher than a 23. Average score is 21. 28+ puts you in the top 10%.

 

[jhib]

Isn't there some kind of thread for lawyers so they stop ruining threads like this??

Just kidding, guys. Interesting stuff here. Carry on.

 

[Dinsy Ejotuz]

liberals touting the superior competency of legislatures.

I'm probably just spacing, but I'm having trouble thinking of an example for this one?

I took the phrase from Ramsay Hunt Experience, who I think would describe himself as a liberal. I guess part of my question is to what extent other liberals share the sentiment.

I may just be having selective memory, but "the courts shouldn't decide, let's leave it to the legislatures" isn't something I've heard much of from leftish sorts.

That could be because so many legislatures in states where the big issues are being legislated are held by Republicans though.

 

[SaintsInDome2006]

liberals touting the superior competency of legislatures.

I'm probably just spacing, but I'm having trouble thinking of an example for this one?

I took the phrase from Ramsay Hunt Experience, who I think would describe himself as a liberal. I guess part of my question is to what extent other liberals share the sentiment.

I may just be having selective memory, but "the courts shouldn't decide, let's leave it to the legislatures" isn't something I've heard much of from leftish sorts.

That could be because so many legislatures in states where the big issues are being legislated are held by Republicans though.

Ha, right good point - legislature views things the way we do, let democracy decide.

And if they don't, well, they shouldn't.

 

[Clifford]

That argument is bull####.

Remedying the fact that the government prohibited one race of people for centuries from participating in the institutions that contribute to and create success and wealth in this country--education, family, religion, government itself, etc.--is obviously a compelling government interest.

I agree with your statement. However I don't believe that affirmative action in terms of college admissions is the best means of remedy.

I dont think it is the best means of remedy, but it certainly could be considered a legitimate tool in such a remedy.

Who is looking out for the poor white guy?

Johnjohn

 

[Ramsay Hunt Experience]

liberals touting the superior competency of legislatures.

I'm probably just spacing, but I'm having trouble thinking of an example for this one?

I took the phrase from Ramsay Hunt Experience, who I think would describe himself as a liberal. I guess part of my question is to what extent other liberals share the sentiment.

I don't think it's any secret that liberals are probably more deferential to legislatures when they like the makeup of those legislatures. With that said, in the old FFA Constitutional Convention, fatguyinalittlecoat and I both vociferously argued that the legislature should have plenary powers.

If yes, heightened scrutiny. If no, rational basis. I don't think that's messed up. I think that simply reflects the reality that we should recognize the superior institutional competency of legislatures to make policy decisions unless there are conditions that give rise to reason to doubt that competency.

I think the bold is where we differ. (I mean that as a joke -- in the "politicians are dumb" genre -- although the fact that I have to say so means that it probably isn't a very good one. But I also mean it seriously, given our different preferred interpretations of the Commerce Clause, and different views regarding the proper scope of government generally.)

In our limited democracy, I think the "limited" part is every bit as important as the "democracy" part.

I wonder whether this is still a left-right issue. Back in the 80s, when conservatives were still pissed about Griswold and Roe, and then in the 90s, when Robert Bork was promoting his book about how awesome legislatures are, and how courts should never meddle, it seemed like the right believed very strongly in majority rule, while the left believed very strongly in judicial review.

Have the roles reversed somewhat? More recently, we've got the right asking for Obamacare to be struck down, asking for racial preferences to be struck down, asking for gun-control laws to be struck down, asking for eminent domain to be restricted, and we have liberals touting the superior competency of legislatures.

No, I know that you have a higher opinion of judges than legislators. I don't really disagree with that. I think more of Clarence Thomas than I do of Mitch McConnell or Rand Paul.

But I still don't really think that the issue is solely concerned with the scope of judicial review. For instance, I don't think you believe that every enacted law should be subject to some degree of higher scrutiny (even if it's some Anthony Kennedy-esque form of rational basis scrutiny that is something more than rational basis scrutiny). So our disagreement lies in what circumstances judicial review is appropriate.

I left out the first paragraph of the Carolene footnote, but we'd probably agree on that part. If a piece of legislation is directed at the exercise of some right that is elsewhere protected in the Constitution, some form of higher scrutiny is appropriate. We just disagree on how to define the other category. I don't think it makes sense to say that any laws that rely on racial classifications are suspect while laws that rely on means-based classifications are not suspect without articulating why that would be. And when I articulate that reason, I realize that its not the fact that the classification is based on something I find creepy or racist which is the problem, but rather the fact that laws targeting minority classes within that classification leave them with little avenue to pursue change.

 

[Ramsay Hunt Experience]

From the NYT article posted further up:

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

I read Ramsey and perhaps Tood and a few others advocating for AA and I feel like we have hardly advanced in 100+ years.

This is from the majority decision in Plessy vs Ferguson, forgive the antiquated terminology and phraseology:

That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

This is from 1892. Keep in mind no one could tell if he was "black" or "white", he simply was able to sit in the "white" section, no one noticed he wasn't white, then he volunteered that he was actually "black."

I would like someone in favor of the AA law in MI to explain whether they think a Homer Plessy living in MI today, say in a wealthy suburb like Grosse Pointe, would be favored or hurt by an affirmative action law in Michigan - that is, which side of the line would you as a member of the controlling board that handle admissions put him on, the "white" or "black" and explain exactly why and how you would implement this. Really curious how far we have come.

I think this would be a simple case even without an equal protection doctrine. Railroad car segregation serves no legitimate government purpose and should not withstand rational basis review. No heightened scrutiny required.

It is interesting that you chose to focus on Plessey's mixed race. Homer Plessey was chosen by a committee of creole citizens to challenge the Separate Car Act. They went to the trouble of informing the railroad of what Plessey was going to do and then hiring a private detective to arrest and detain Plessey in order to ensure that he was charged. He basically had to create standing. As a practical matter, I don't think it would be a problem if the law treated him differently than someone who was actually burdened in fact by the Separate Car Act.

Ramsey, I'm not talking about if he got in a railroad car.

I'm talking about if he applied to the University of Michigan with a GPA lower than most in a situation where affirmative action was in effect for admissions.

Then what you're talking about is irrelevant, IMO. It's just the same argument that AA benefits recent immigrants as well as the descendents of slaves. But nobody challenges the specific person getting in under AA. They challenge the policy. Because I think policies that burden groups with full participation in the political process should be evaluated under a rational basis review, I don't think it's a big problem that a policy is "overbroad". Laws and policies reviewed under rational basis review needn't be narrowly tailored.

What has happened in Michigan confirms my point. Michigan changed its laws. As I've said several times in this thread, I believe Michigan has every right to do so (i.e., I would not have joined Sotomayor's dissent) because color-blind policies are not directed at any minority and thus pass rational basis review. But I also believe that Michigan should have every right to pass laws (or for the University of Michigan to adopt policies) that give preferences to racial minorities because I think the attempt to ameliorate the effect of years of invidious racial discrimination is a legitimate government interest that easily survives rational basis review. This is the way that equal protection should work, IMO. It's also an approach that harmonizes the best, IMO, with what we know of the Congress that passed the 14th Amendment (a Congress that simultaneously passed several federal programs that granted racial preferences).

The policy is based by including or excluding who it applies to up front, it is inherently irrational in that inclusion/exclusion process, which is the very reason it has been struck down in so many forms so many times.

You still haven't said if you would admit Plessy to U of M under an AA program. Would you?

I don't even understand the first paragraph of your post.

I am completely agnostic about whether I would admit Plessey. It's not my decision, it's the University of Michigan's decision. I think either decision is rational. They could adopt any number of policies but let's consider three.

1. A color-blind policy where race isn't considered. That's rational and I don't think a reviewing court should overturn.

2. A policy that considers anyone with 1/16th African blood or more as an African American who receives some preference in admissions. That's a policy with a rational relationship to ameliorating the effects of pernicious societal discrimination and which increases minority participation in a great state University. That's rational and I don't think a reviewing court should overturn. To the extent that policy burdens individual members of the racial majority, that racial majority has adequate participation in the political process to ensure that they can, if they wish, lobby the legislature to pas a law prohibiting this policy (which was what was done here).

3. A policy that considers anyone with 1/4th African blood or more as an African American who receives some preference in admissions. That's also (on first glance) a policy with a rational relationship to ameliorating the effects of pernicious societal discrimination and which increases minority participation in a great state University. But, if Homer Plessey could show that people like himself, with 1/8th African American blood are uniquely burdened by the policy (say there's a statistical analysis that shows a "donut" hole where people with small quantums of African blood are not getting admitted into college and not starting businesses or participating in the political process) then Homer Plessey could make a factual showing that heightened scrutiny is appropriate.

Isn't Nos. 2-3 just the "one-drop" rule?

[SIZE=11pt]The 1910s were the nadir of the [/SIZE][SIZE=11pt]Jim Crow[/SIZE][SIZE=11pt] laws era by most measures. Tennessee adopted a one-drop statute in 1910. It was followed by Louisiana the same year, Texas and Arkansas in 1911, Mississippi in 1917, North Carolina in 1923, Virginia in 1924, Alabama and Georgia in 1927, and Oklahoma in 1931. During this same time, Florida, Indiana, Kentucky, Maryland, Missouri, Nebraska, North Dakota and Utah retained their old racial blood fraction statutes, but amended these fractions, such as one-eighth or one-sixteenth etc., to be equivalent to simply one drop of Negro blood, [/SIZE][SIZE=11pt]de facto[/SIZE][SIZE=11pt].[/SIZE][SIZE=11pt] By 1925, almost every state had some form of a one-drop law on the books. [/SIZE]

http://blackhistory.com/content/63228/one-drop-rule

How is that "rational"?

This is a picture of Homer Plessy:

http://cgtherapist.com/images/homer-plessy-i14.jpg

If Homer Plessy showed up at UM and went to register, wouldn't they say he wasn't black because he looked white? Couldn't he get in trouble for this because he stated on his application that he was black? Would he then have to prove his heritage somehow?

We can use a one-drop rule if you'd like.

When I say that it passes rational basis review, I am using a legal term of art which simply means that the policy or legislation is rationally related to a legitimate government interest. So, in order to understand what I mean, let's identify some government interests.

1) Rectifying the effects of institutional racism. Is that a legitimate government interest? I think so. Would having more minorities with college educations in the professional classes be a solution that is rationally related to that interest. Absolutely. It doesn't have to be the best solution. It just has to bear a reasonable relationship to the problem.

2) Increasing the moral legitimacy of government among an oppressed class of the government's citizens. Seems a reasonable interest to me. I would say that having a President of the United States and Supreme Court justices who are black and Hispanic have definitely advanced this goal. All three of those people benefited from racial preferences, so that clearly passes the rational relationship prong of the test.

EDIT: Under the one-drop rule, we'd fail heightened scrutiny because lots of people who do not suffer the lingering effects of institutional racism or might not immediately be identified as minorities may be promoted into the university, but I'm not applying heightened scrutiny. If you've been following the discussion at all, you understand that. Under rational basis review, the policies still pass because they needn't be narrowly tailored.

 

[SaintsInDome2006]

Ramsey, I'm not talking about if he got in a railroad car.

I'm talking about if he applied to the University of Michigan with a GPA lower than most in a situation where affirmative action was in effect for admissions.

Then what you're talking about is irrelevant, IMO. It's just the same argument that AA benefits recent immigrants as well as the descendents of slaves. But nobody challenges the specific person getting in under AA. They challenge the policy. Because I think policies that burden groups with full participation in the political process should be evaluated under a rational basis review, I don't think it's a big problem that a policy is "overbroad". Laws and policies reviewed under rational basis review needn't be narrowly tailored.

What has happened in Michigan confirms my point. Michigan changed its laws. As I've said several times in this thread, I believe Michigan has every right to do so (i.e., I would not have joined Sotomayor's dissent) because color-blind policies are not directed at any minority and thus pass rational basis review. But I also believe that Michigan should have every right to pass laws (or for the University of Michigan to adopt policies) that give preferences to racial minorities because I think the attempt to ameliorate the effect of years of invidious racial discrimination is a legitimate government interest that easily survives rational basis review. This is the way that equal protection should work, IMO. It's also an approach that harmonizes the best, IMO, with what we know of the Congress that passed the 14th Amendment (a Congress that simultaneously passed several federal programs that granted racial preferences).

The policy is based by including or excluding who it applies to up front, it is inherently irrational in that inclusion/exclusion process, which is the very reason it has been struck down in so many forms so many times.

You still haven't said if you would admit Plessy to U of M under an AA program. Would you?

I don't even understand the first paragraph of your post.

I am completely agnostic about whether I would admit Plessey. It's not my decision, it's the University of Michigan's decision. I think either decision is rational. They could adopt any number of policies but let's consider three.

1. A color-blind policy where race isn't considered. That's rational and I don't think a reviewing court should overturn.

2. A policy that considers anyone with 1/16th African blood or more as an African American who receives some preference in admissions. That's a policy with a rational relationship to ameliorating the effects of pernicious societal discrimination and which increases minority participation in a great state University. That's rational and I don't think a reviewing court should overturn. To the extent that policy burdens individual members of the racial majority, that racial majority has adequate participation in the political process to ensure that they can, if they wish, lobby the legislature to pas a law prohibiting this policy (which was what was done here).

3. A policy that considers anyone with 1/4th African blood or more as an African American who receives some preference in admissions. That's also (on first glance) a policy with a rational relationship to ameliorating the effects of pernicious societal discrimination and which increases minority participation in a great state University. But, if Homer Plessey could show that people like himself, with 1/8th African American blood are uniquely burdened by the policy (say there's a statistical analysis that shows a "donut" hole where people with small quantums of African blood are not getting admitted into college and not starting businesses or participating in the political process) then Homer Plessey could make a factual showing that heightened scrutiny is appropriate.

Isn't Nos. 2-3 just the "one-drop" rule?

[SIZE=11pt]The 1910s were the nadir of the [/SIZE][SIZE=11pt]Jim Crow[/SIZE][SIZE=11pt] laws era by most measures. Tennessee adopted a one-drop statute in 1910. It was followed by Louisiana the same year, Texas and Arkansas in 1911, Mississippi in 1917, North Carolina in 1923, Virginia in 1924, Alabama and Georgia in 1927, and Oklahoma in 1931. During this same time, Florida, Indiana, Kentucky, Maryland, Missouri, Nebraska, North Dakota and Utah retained their old racial blood fraction statutes, but amended these fractions, such as one-eighth or one-sixteenth etc., to be equivalent to simply one drop of Negro blood, [/SIZE][SIZE=11pt]de facto[/SIZE][SIZE=11pt].[/SIZE][SIZE=11pt] By 1925, almost every state had some form of a one-drop law on the books. [/SIZE]

http://blackhistory.com/content/63228/one-drop-rule

How is that "rational"?

This is a picture of Homer Plessy:

http://cgtherapist.com/images/homer-plessy-i14.jpg

If Homer Plessy showed up at UM and went to register, wouldn't they say he wasn't black because he looked white? Couldn't he get in trouble for this because he stated on his application that he was black? Would he then have to prove his heritage somehow?

We can use a one-drop rule if you'd like.

When I say that it passes rational basis review, I am using a legal term of art which simply means that the policy or legislation is rationally related to a legitimate government interest. So, in order to understand what I mean, let's identify some government interests.

1) Rectifying the effects of institutional racism. Is that a legitimate government interest? I think so. Would having more minorities with college educations in the professional classes be a solution that is rationally related to that interest. Absolutely. It doesn't have to be the best solution. It just has to bear a reasonable relationship to the problem.

2) Increasing the moral legitimacy of government among an oppressed class of the government's citizens. Seems a reasonable interest to me. I would say that having a President of the United States and Supreme Court justices who are black and Hispanic have definitely advanced this goal. All three of those people benefited from racial preferences, so that clearly passes the rational relationship prong of the test.

EDIT: Under the one-drop rule, we'd fail heightened scrutiny because lots of people who do not suffer the lingering effects of institutional racism or might not immediately be identified as minorities may be promoted into the university, but I'm not applying heightened scrutiny. If you've been following the discussion at all, you understand that. Under rational basis review, the policies still pass because they needn't be narrowly tailored.

I absolutely have been following the discussion. I find it fascinating to hear you defend the one drop rule.

The one drop rule has got to be one of the most notorious hallmarks of an ill-begotten era, the Jim Crow years.

The one drop rule does not, should not and cannot meet the least rational of tests, in fact it underlay the Plessy decision itself, at its very root of it, without the one drop rule railcar segregation could not have existed.

You are in fact arguing against the dissent in Plessy and for the majority, which stated at its very conclusion:

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chaver, 5 Jones [N.C.] 1, p. 11); others that it depends upon the preponderance of blood (Gray v. State, 4 Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three-fourths. (People v. Dean, 4 Michigan 406; Jones v. Commonwealth, 80 Virginia 538). But these are questions to be determined under the laws of each State, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

Aside from the holding, you agree with this proposition of the Plessy majority?

The One Drop Rule, and one such enacting legislation, the Racial Integrity Act of Virginia, was declared unconstitutional by the USSC in Loving vs Virginia, but I'm really wondering if you think that was the wrong decision.

"...we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose..." - CJ Earl Warren.

 

[Ramsay Hunt Experience]

I absolutely have been following the discussion. I find it fascinating to hear you defend the one drop rule.

The one drop rule has got to be one of the most notorious hallmarks of an ill-begotten era, the Jim Crow years.

The one drop rule does not, should not and cannot meet the least rational of tests, in fact it underlay the Plessy decision itself, at its very root of it, without the one drop rule railcar segregation could not have existed.

You are in fact arguing against the dissent in Plessy and for the majority, which stated at its very conclusion:

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chaver, 5 Jones [N.C.] 1, p. 11); others that it depends upon the preponderance of blood (Gray v. State, 4 Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three-fourths. (People v. Dean, 4 Michigan 406; Jones v. Commonwealth, 80 Virginia 538). But these are questions to be determined under the laws of each State, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

Aside from the holding, you agree with this proposition of the Plessy majority?

I don't mean to be a ####, but you keep asking questions that suggest you really have no idea what I'm talking about. Eventually it becomes a waste of my time to try to explain myself to someone who keeps lobbing non-sequitors.

The one-percent rule was odious because it was part of a systemic attempt to disenfranchise blacks. As part of that effort, all blacks, including those with a small quantum of African blood were subjected to restrictions on their participation in the economic and political machinery of the country. It was not odious because its somehow more odious to draw the line at 1/2 African blood, or 1/4 African blood, or even 1/128th African blood. The quantum of African blood isn't the problem. It's the attempt to disenfranchise a politically vulnerable minority.

Affirmative action, I am arguing, is not an attempt to disenfranchise a politically vulnerable minority. It explicitly enfranchises politically vulnerable minorities. So, no, I don't think it's odious to treat people with a small quantum of African blood as black if the result of that decision is to enfranchise them.

 

[SaintsInDome2006]

I absolutely have been following the discussion. I find it fascinating to hear you defend the one drop rule.

The one drop rule has got to be one of the most notorious hallmarks of an ill-begotten era, the Jim Crow years.

The one drop rule does not, should not and cannot meet the least rational of tests, in fact it underlay the Plessy decision itself, at its very root of it, without the one drop rule railcar segregation could not have existed.

You are in fact arguing against the dissent in Plessy and for the majority, which stated at its very conclusion:

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chaver, 5 Jones [N.C.] 1, p. 11); others that it depends upon the preponderance of blood (Gray v. State, 4 Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three-fourths. (People v. Dean, 4 Michigan 406; Jones v. Commonwealth, 80 Virginia 538). But these are questions to be determined under the laws of each State, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

Aside from the holding, you agree with this proposition of the Plessy majority?

I don't mean to be a ####, but you keep asking questions that suggest you really have no idea what I'm talking about. Eventually it becomes a waste of my time to try to explain myself to someone who keeps lobbing non-sequitors.

The one-percent rule was odious because it was part of a systemic attempt to disenfranchise blacks. As part of that effort, all blacks, including those with a small quantum of African blood were subjected to restrictions on their participation in the economic and political machinery of the country. It was not odious because its somehow more odious to draw the line at 1/2 African blood, or 1/4 African blood, or even 1/128th African blood. The quantum of African blood isn't the problem. It's the attempt to disenfranchise a politically vulnerable minority.

Affirmative action, I am arguing, is not an attempt to disenfranchise a politically vulnerable minority. It explicitly enfranchises politically vulnerable minorities. So, no, I don't think it's odious to treat people with a small quantum of African blood as black if the result of that decision is to enfranchise them.

The odious part is you need an odious, irrational - and unconstitutional - rule or law to do that.

Anyway, I appreciate the discussion, and your openness and candor, but I think you see now where all this leads, which is an irrational concept at its very heart.

 

[Rich Conway]

Here's why I think you're wrong. As a practical matter, the equal protection clause doesn't guarantee everyone equal protection under the law. The University of Michigan doesn't have to admit everyone who wants to go. It's allowed to discriminate between smarter people and dumber people. Or more driven people and lazy people. Or between football players and non-football players. Or between legacies and non-legacies. Or, if Michigan wants to do means-based AA, between poor people and rich people. As you're pointed out before on this board, the government is allowed to discriminate based on a whole host of reasons.

People are not entitled to equal treatment under the law, but they are entitled to equal protection. The Constitution as currently interpreted affords smarter people and dumber people the same protection: it requires the University of Michigan to have an equally good reason to discriminate against either. Same with driven people and lazy people, football players and non-football players, legacies and non-legacies, Christians and Muslims, whites and blacks.

If all that is required is equal scrutiny, then we could satisfy equal protection by doing every analysis under rational basis.

Certain classifications are more suspect than others; but for any given classification, each class -- which is to say, each person within each class -- is entitled to equal constitutional protection. It's not strict scrutiny for Muslims and rational basis for Christians. Because that would be messed up.

That's only because you're accepting dividing along classifications in the first place. Christians and Muslims would face the same test.

Are they a discrete and insular minority that lacks enough meaningful participation in the political process?

If yes, heightened scrutiny. If no, rational basis. I don't think that's messed up. I think that simply reflects the reality that we should recognize the superior institutional competency of legislatures to make policy decisions unless there are conditions that give rise to reason to doubt that competency.

I'd suggest that most of the policy decisions already made are more than enough reason to doubt competency for future decisions.