Sotomayor, Kagan and the Majority

Fisher versus UT Austin. The Supreme Court ruled 7-1 with Sotomayor and Kagan voting with the majority.

http://s3.documentcloud.org/documents/717014/fisher-v-ut-austin.pdf

When each of them was nominated and approved by the Senate, to counter the predictable handwringing from conservatives, I pointed out that the justices must rule on new problems in consitutional law. Liberals become conservatives; traditionalists become progressives. You can demand the consistent Objectivism of Judge Narragansett. You will not get it. But neither will we ever see the opposite: consistent denial of individual rights.

Justice Ginsburg's objections must still stand. The Texas system does not take the top ten percent from each school, but the top ten percent statewide. Last May (2012), I gave a talk on forensic psychology to four science classes at a school with so many sections of AP Statistics that they needed two teachers for it. You do not get that everywhere. But neither do they all want to stay in Austin. The world is bigger than this.

Whether the University should then "penalize" pupils from good schools who must compete against each other becomes a difficult - perhaps intractable - problem. The single best predictor of college performance is high school performance. But those are statistical inferences, not evaluations of individual worth. No such measures exist. We know integrity, initiative, intelligence, and determination when we meet them, but they do not come with numerical scores.

Post 1

Monday, June 24, 2013 - 12:26pm

Michael,

Kagan wasn't part of this at all, "KAGAN, J., took no part in the consideration
or decision of the case."
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TWO VIEWS

And you can divide the majority opinion of this case into two views:

One view is that government can override the equal protection clause BUT only if it has a compelling interest and goes about it in a proper fashion.
The other view is that there is no constitutional exception to equal protection under the law.

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THE LIBERAL VIEW

Kennedy's majority opinion makes clear that he is defending government's 'right' to override the equal protection clause, BUT not in this particular case. (The dissenting opinion from Ginsburg is an argument that government can go much further in overriding the equal protection clause and that explicit racial recognition should be permitted as an admissions policy.)

THE 'CONSERVATIVE' VIEW

Both Justice Scalia and Justice Thomas felt the need to write separate opinions, despite concurring with the majority decision. They did so because they had very different reasons for their decisions. They do not believe the equal protection clause permits to exceptions.

(I put "conservative" in single quotes because it can have a different meaning when it refers to a Supreme Court Justice than it does when applied to someone's position in the American political spectrum. For the Court, it means that they believe the constitution should be understood as the founding fathers understood it. Strict Constructionism, as opposed to the view that it can be re-interpreted to mean other than the founding fathers intended.)
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AND THEN THERE IS GINSBERG

Michael, you appear to believe that Justice Ginsburg had valid points. I would suggest that she should read Thomas' opinion to understand how racist her position is, to say nothing of how her need to understand that her personal beliefs should not supersede what is written in the constitution.
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Here are some excerpts from FISHER v. UNIVERSITY OF TEXAS AT AUSTIN ET AL:

LIBERAL VIEW EXCERPTS

Kennedy refers to Hopwood v. Texas, 78 F. 3d 932, 955 (1996), when he writes, "It ruled the University�s consideration of race violated the Equal Protection Clause because it did not further any compelling government interest." - and this sets up his main focus and concern, which appears to be that it is okay to violate equal protection, but only with a compelling government interest.

He also notes that the Court of Appeals agrees that it is okay to violate equal protection, as long as it is done with a plan and is in the interest of diversity: "The United States Court of Appeals for the Fifth Circuit affirmed. It held that Grutter required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity�s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the University�s admissions plan. 631 F. 3d 213, 217�218 (2011)."

He quotes Justice Powell, in Bakke: "Any racial classification must meet strict scrutiny, for when government decisions 'touch upon an individual�s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.' Id., at 299." This is still the elitist view that by tweaking the law a bit some sociological Utopian view of "diversity" can be attained, and that this is not just permissible, but that it takes precedence over any strict application of equal protection. It also carries the hidden assumption that government isn't really limited by the constitution and that the constitution can be interpreted so loosely as to mean whatever is ideologically impelled.

Here is where Kennedy states it very openly: "Grutter made clear that racial 'classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.' 539 U. S., at 326"

All of these Supreme quibbles are really the same thing... they are saying we can't be flagrant and out in the open about making decisions based upon skin color. That wouldn't be accepted. So, we need to pretend that we aren't even seeing the amount of melanin in the skin cells, while none the less, ensuring that lots and lots of students of color are admitted. They are saying, "Be racist, but for a good cause, and in a way that won't get you caught being racist, and then we'll call it constitutional even if it isn't."

Here is Kennedy again, "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

Look at this language: "Because 'the efforts of the University have been studied, serious, and of high purpose,' the Court of Appeals held that the use of race in the admissions program fell within 'a constitutionally protected zone of discretion.' Id., at 231." Where is that section of the constitution? The one that says Equal Protection under the law has some exceptions? I must have missed it.
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'CONSERVATIVE' VIEW EXCERPTS

Whereas Kennedy wrote at great length on "compelling interest" and the burden to demonstrate that interest, JUSTICE SCALIA, wrote: "I adhere to the view I expressed in Grutter v. Bollinger: 'The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.' 539 U. S. 306, 349 (2003) (opinion concurring in part and dissenting in part). The petitioner in this case did not ask us to overrule Grutter�s holding that a 'compelling interest' in the educational benefits of diversity can justify racial preferences in university admissions."

Thomas wrote: "I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State�s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause."

Also from Thomas: "The Fourteenth Amendment views racial bigotry as an evil to be stamped out, not as an excuse for perpetual racial tinkering by the State." And he quotes DeFunis v. Odegaard, 416 U. S. 312, 342 (1974) �The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized�

Thomas is very clear: "My view of the Constitution is the one advanced by the plaintiffs in Brown: '[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.'"

p.s. I wish we could grant Clarence Thomas an extremely long life and then clone him!

Post 2

Monday, June 24, 2013 - 1:50pm

Michael:

I gave a talk on forensic psychology to four science classes at a school with so many sections of AP Statistics that they needed two teachers for it.

What we can infer from that depends on information that is missing: some schools (I swear to God)have an 'opt in' policy for AP, like an elective. Others have a more traditional 'placed by previous year teacher recommendation' policy.

In school districts with an abundance of helicopter parents, they have sometimes arm wrestled the local district into implementing an 'opt in' policy. Same with 'honors' classes!

Insanity, but consistent with not being 'discriminatory' and 'non-inclusive' -- a statement that is three way redundant.

regards,
Fred

Post 3

Monday, June 24, 2013 - 4:59pm

Fred, your own involvement - actually your wife's, as I recall - gives you a perspective and depth of understanding that I lack. I had to google "helicopter parent" to find an explanation on Wikipedia. As far as I know, Round Rock ISD is upscale enough to be legitimate in its educational goals. But you would be the better judge, perhaps. The classes I spoke to were in criminoliogy, a senior science electiive class using a pretty typical junior college textbook. Two psychology classes also sat in on the presentations.

Steve -- thanks for the in-depth analysis. I knew that 7-1 meant that someone sat out. I should have checked. I have no quibbles with your analysis. I think that we would agree that entire mess is totally chaotic because of the invalid premises of all parties.
Also, I was wrong about UT not accepting based on high school class rank:
Modifications to Texas� Automatic Admission Law
SB 175, passed by the 81^st Legislature in the spring of 2009, modifies the automatic admission program for The University of Texas at Austin. Under the new law,
The University is to automatically admit enough students to fill 75% of available Texas resident spaces.
Each fall by September 15 the university will notify Texas school officials of the class rank that current high school juniors need to attain by the end of their junior year in order to be automatically admitted two years out.
SB 175 goes into effect with the 2011 summer/fall class and will remain in effect at least through the 2015-16 academic year.
To be considered for admission, freshman applicants to UT Austin must meet the state�s uniform standard for high school coursework as defined by SB 3826.
Class Rank to Be Automatically Admitted
UT Austin automatically admitted all eligible top 10% applicants to the 2010 summer/fall class and will admit all eligible top 10% applicants to the 2011 spring class. SB 175 does not affect automatic admission for these applicants. The changes go into effect for the first time for applicants to the 2011 summer/fall entering freshman class.

That being as it is, a student from a poor (economically poor; socially poor) disrtict would have the same opporitunity as one from a wealthy i.e., "good") school. They are ranked versus their own community. While ethnicity ("race") does correlate with income here in Texas, my own focus is more economic. Judging science fairs here, I met several kids who could not have placed as science fair winners 1st through 5th simply for lack of mentoring. They had good ideas, but they were on their own in a village of 8,000 out in the middle of nowhere attending a school that could not help them at their level.

The "problem" is that any admissions officer at any university should be able to take one look at their application and know that this is someone who will succeed ... but... they will be judged differently if they are one ethnicity than if they are another and that violates what you and I regard as a fundamental moral imperative to judge each person as an indvidial, not as a member of a collective. Eliminate public education and the problem disappears. Short of that, you and I agree with Justice Clarence Thomas that "race" (so-called) must never be a concern of the state.

I agree with you, also, on your raising the problem of "diversity." I mean, no one is demanding that Beatles and Stones fans be balanced with Beach Boys fans -- or what is it now? Justin Bieber and Miley Cyrus? "Diversity" means "race." But that gets us to the untenable - and unaddressed - problem of Asians who must be better to be equal, lest like the Jews of a hundred years ago, they overwhelm the competition with their superior performance. It was exactly that reason then and now that schools limit the admissions of candidates from certain ethnic groups.

Again, the fundamental truth is that all that matters is the assessment of an individual's ability.

But more deeply, we must get away from the idea that schools select students. McDonald's does not select customers. The more basic error is the assumption that graduating from the right school entitles you to successes that others are not allowed.

(Edited by Michael E. Marotta on 6/24, 5:16pm)

Post 4

Monday, June 24, 2013 - 6:04pm

Michael,

Judging an applicant based upon their performance only within their high school, rather than to rank them against all other applicants, tends to make educational entrance standards relative rather than moving towards a more objective standard. It is more likely to excuse substandard schools by giving their poor efforts the same ranking as those schools that are doing a far better job.

There are a number of examples of 'rogue' teachers who have shown that the students in the very worst socio-economic areas can rise to levels far above the average of all students. That shows that teaching and learning are about individuals and the volitional efforts of a human mind as opposed to the sociological genes v. nurture theories.

We agree on the basic issues, as you put it, "[the] fundamental moral imperative to judge each person as an individual, not as a member of a collective." And, "that 'race' (so-called) must never be a concern of the state." And, "...the fundamental truth is that all that matters is the assessment of an individual's ability."

Post 5

Thursday, June 27, 2013 - 2:16pm

Steve, it is a bit more complicated than that. First of all, just making the field larger does not make the standards "objective." In other words, you are proposing (your proposal, not the actual case) that all high school graduates be ranked statewide. Why not nationwide by SAT score? (Or National Merit Scholarship? or whatever else?) We could have a national educational system like Japan and the European nations.... Well, that would be bad on many levels and I am sure that you agree that it would be bad.

In fact, the State of Texas has a near-monopoly on public education. Of course all public school teachers meet state standards, same as everywhere else. Moreover, however, the State of Texas buys all the textbooks for all the public schools. (Thus, Kennedy was not shot by Lee Harvey Oswald from the roof of the Dallas Book Depository.) Any differences among schools must be a matter of "social texture." As I said, as a judge at regional science fairs here I met kids from small towns who had good ideas, but no mentors at their level. It would be unfair to penalize them. Again, the single best predictor of success in college is success in high school, regardless of the school. So, just leave it at that.

Incidentally, the amount of money spent per pupil also has lmited correlation with student success. What counts more is parental involvement. Schools with strong PTAs are strong schools. Kids whose parents care about their grades do better, no surpise there, I am sure you will agree.

Post 6

Thursday, June 27, 2013 - 5:29pm

Hell; kids who just eat a good breakfast do better in school. That is a cultural thing, and isn't fixed by school districts offering free/subsidized breakfasts.

How the Hell does 'the system' fix that? It doesn't.

Who in this day and age doesn't understand that you need a good breakfast to function in a schoolroom environment all day long?

It is evidence once again that education is primarily taken, not given. It is at most well offered; that is all 'the system' can do.

But politicians --especially national politicans who have jack-shit to do with 'the system' of education, which is all state and mostly locally run -- do not hesitate to enact/propose spending OPM via mandates to fix 'the system' to address failures in taken education...

Behaviours matter. Beliefs matter. Culture matters. National directives aimed primarily at 'the system' do not matter in the least.

Outcomes are not pushed, they are primarily pulled.

Selling the meme that there is something wrong with 'the system' -- that inevitably demands a politician to insert himself into a process that he has nothing at all to do with and direct large sums of money to his support groups or for the percieved benefit of his support groups -- is what politicians do.

Well no shit, Fred. So why do we let them? They are wrong about education because their model of how it occurs (students shuffle into their seats and 'the system' delivers education painlessly into their passive gullets without even the need for them to open their gaping maws, as long as we build the right 'the system') is totally and completely flawed. If only we built a shiny enough Golden Education Funnel in inner cities, why, there would be no inner city failures in taking education, and in fact, no failures in outcomes at all. Bullshit.

So why do we do anything by laugh when a POTUS gets up and prattles on about national directives for locally administered education in America? Shouldn't we be telling the idiot to get back to work defending American freedom?

Post 7

Thursday, June 27, 2013 - 6:44pm