July 18, 2014

The 5th Circuit's pro-affirmative action decision in Fisher "may, paradoxically, tee up a major loss in the larger war."

Richard D. Kahlenberg's explanation is — despite that mixed metaphor — skillfully done:
As a matter of process, the Fifth Circuit’s decision plays into the hands of conservatives by expediting the possibility of Supreme Court review in two respects. First, the appeals court rejected UT-Austin’s request that it send the case back to the district court for a potentially lengthy hearing on factual issues...

Second, by handing a defeat to Fisher, the court empowered her to appeal the case to the full Fifth Circuit and then to the Supreme Court. If Fisher had won this round, the university would have been in the driver’s seat in deciding whether to appeal. It is possible that the university would have forgone an appeal in order to avoid a potentially negative Supreme Court decision....

Moreover, on the substance, the reasoning of the Fifth Circuit is likely to invite review—and reversal—of the lower court’s decision. Justice Kennedy’s opinion in the 2013 Fisher decision made two big substantive points and one stylistic one, all of which the Fifth Circuit’s majority opinion, written by Judge Patrick E. Higginbotham, oddly defies.
For the 3 things Kennedy said and the way Higginbotham defied all 3, go to the link. Basically, Higginbotham "dismissed Kennedy’s emphasis on race-neutral alternatives," "blithely asserted"  that alternatives like socioeconomic affirmative action "wouldn’t work," "paid lip service to Kennedy’s requirement that courts give 'no deference' on the question of whether alternatives can produce 'sufficient' racial diversity," failed to require the University to give definition to its goal of "critical mass," and "took an unnecessary dig at Kennedy’s contention that the Fifth Circuit had misapplied the Grutter precedent."

29 comments:

EDH said...

It's time to call the left's bluff.

Institute a "exchange your seat in the freshman class with the minority of your choice program."

That way the spawn of the progressive rich and famous can donate his or her freshman seat in an elite school to the less fortunate, and go to community college instead.

Any takers?

Oso Negro said...

So the word this morning at Instapundit is that UW Madison is inflating minority grades in the name if diversity. Are you aware if this, professor? Please say you are not a co-conspirator.

Ann Althouse said...

"Are you aware [of] this, professor? Please say you are not a co-conspirator."

I have an open tab on that story and am planning to get to it.

As for me, all my grades are based on exams that are identified only by number and scored with no knowledge of who has written what I am reading.

I do have the power to raise or lower grades once I see the names, but I rarely use it and when I do, it is only to raise a grade a half step, based on semester-long classroom performance, where the grade is out of line with that performance.

Ann Althouse said...

There was a controversy, years ago, when students expressed belief or worry that we, the law professors, were discriminating against minority students, giving them lower grades.

We dealt with the controversy by tightening up the blindness of the blind grading.

The Crack Emcee said...

The 5th Circuit's pro-affirmative action decision in Fisher "may, paradoxically, tee up a major loss in the larger war."


I don't bother myself with what "may" happen until it does - I'm black.

And we won,...

damikesc said...

Why do Progs seem to want less qualified people in important positions?

DKWalser said...

I read the dissent. I found it to be very persuasive.

Gahrie said...

We dealt with the controversy by tightening up the blindness of the blind grading.

But apparently the racial disparity in grades continued anyway.


Hmmm......

DKWalser said...

... I'm black.

And we won,"


Which is the problem. Too many are trying to divide society along racial, gender, and other lines. If "X group" wins, society looses.

Thorley Winston said...

Institute a "exchange your seat in the freshman class with the minority of your choice program."

Agreed, when I was a 1L we had a professor who spent the class discussing “whiteness” as a form of property right and remarked that there wasn’t a single student of color in the class he taught. One of my classmates agreed with him and said that she wished our school had admitted more minorities in our class.

I asked her if since there were only a finite number of spots if she meant that she was willing to give up her chance to attend law school for another person and that discussion ended real quickly.

B said...

"And we won,... "

No, you lost. I can see where dependent blacks would applaud the idea that they must still have a mandated advantage but productive blacks should be outraged.

Blacks were just told that after decades of Affirmative action it must still be mandated because they still cannot compete with the rest of the population. It has helped those who wish to compete on a level field, but not the loads like yourself who would never take advantage of it in favor of money for noting but the amount melanin.

John Lynch said...

Conservatives who complain about underclass behavior and simultaneously attack the most successful way to encourage middle class behavior should reconsider.

Think about it. If you are black and poor and want to be middle class, affirmative action lets you go to college and work anywhere. Every company has an EOE file they have to fill. The government has a quota they are bound by law to meet.

What better encouragement to live a middle class life can there be? And conservatives want to do away with it.

Either blacks are lazy and won't work, or it's unfair that they get special treatment in education and employment. Can't have both. Either one is a problem, or the other. There's a contradiction there unless bad faith is the real reason behind conservative attacks of affirmative action.

If you don't like the underclass, how do we fix it? If you don't like affirmative action, then you are going to have more underclass. Choose.

Michael K said...

"I don't bother myself with what "may" happen until it does - I'm black.

And we won,.."

Yes and you are dumb enough to be happy that all academic achievement by blacks and other "minorities" like women will be even more suspect. I'm sure you will be ecstatic when employers go to exams, as Microsoft has done long ago, for prospective employees.

The newest trend in academics is "certificate classes" like these at UCLA which are on narrow topics and very merit based. My daughter, with two degrees and two years in a PhD program is now taking these on "project management," to get into IT projects.

These will replace all graduate work soon except medical and law school.

Sofa King said...

Either blacks are lazy and won't work, or it's unfair that they get special treatment in education and employment. Can't have both.

Without taking a position on the validity of these premises, I don't understand your logic. Why couldn't both premises be true?

DKWalser said...

...What better encouragement to live a middle class life can there be?...

The fact you seriously ask this question tells us more about your lack of imagination than it does about a lack of viable alternatives to affirmative action. Thousands of people from all races join the middle class each year. Most do it through hard work and personal initiative. Few do it through affirmative action. (Studies have shown that affirmative action mostly benefits the children of upper-middle class blacks and blacks from outside the USA.)

To answer your question: The alternative to affirmative action is to reward hard work and personal initiative and to quit rewarding the dysfunctional behaviors that trap so many in poverty.

damikesc said...

I don't bother myself with what "may" happen until it does - I'm black.

And we won,...


So, you can be less qualified and move forward.

Congrats. Seems like a shallow goal to seek, but whatevs.

I guess King's dream was to have poorly qualified minorities suck hard in college so bad that schools must give them extra credit for being black or something.

Either blacks are lazy and won't work, or it's unfair that they get special treatment in education and employment. Can't have both.

Says who? The drop out rate for blacks in elite schools is rather staggering.

And if YOU want to sacrifice YOUR kids to help a minority up, knock yourself out. Don't expect me to ask my kids to make a similar sacrifice.

I note that you don't seem to notice a white underclass that exists...

I also don't see how tellibg anybody "We don't REALLY care how much you work" is going to encourage work.

mccullough said...

John Lynch,

Affirmative action is not socio-economic. It's race based because poor whites outscore wealthy blacks on standardized tests. Why should blacks who've had good educational opportunities be given preference over poor whites? Poor whites don't get an opportunity for the middle class because rich whites feel guilty about rich blacks. Rich whites don't care about poor blacks and don't want their kids near them. And they don't want their kids near poor whites.

Anonymous said...

...alternatives like socioeconomic affirmative action "wouldn’t work,"

So Obama's kids would be "affirmed" over poor white kids.

John Lynch said...

DKWalser-

And how do you do that from a policy perspective? Sounds like an excuse to do nothing. Doing nothing wasn't working.

It seems to me that you aren't very imaginative in finding a solution to a problem that won't solve itself. It's easier to blame people than give them an opportunity. That's an attitude that takes pleasure in punishment rather than reward.

Affirmative action isn't free. It has to be taken advantage of. Someone has to show up to school and has to show up to work. That's middle class behavior. You want that or not?

Having not thought this through as a problem, it seems to me that you are more about punishing people for not acting the way you want rather than giving an incentive for the behavior that you say you want. That's the same punitive approach toward Black Americans that's been used for hundreds of years. It utterly failed. And it's completely unimaginative. Maybe doing nothing will work, eventually, but I think you want people to fail so you can blame them for it.

Perhaps a different approach should be taken toward recent immigrants than toward people who were punished for being who they were for centuries?

Have any more imaginative ideas than doing nothing?

The Godfather said...

Crack says: "I'm black.

"And we won,..."

No, you apparently don't understand affirmative action. The purpose isn't to help blacks; that would be illegal. The purpose of affirmative action in college, etc., is to promote diversity, which improves the education for everyone. Because most of the students will still be white, affirmative action is mostly about helping white kids get a better education. The black kids are just a means to an end. Tools, you might say.

Is that what you won?

The Crack Emcee said...

damikesc,

"I guess King's dream was to have poorly qualified minorities suck hard in college so bad that schools must give them extra credit for being black or something."

No, King's dream was reparations, but y'all's still too much of a bunch of immoral Nazi chickenshit cowards to get there yet - so this will have to do.

If took whites 100 years to give us freedom - after the Civil War so many of your brave relatives died for was shitted on by the rest of you - so it might take another 100 to get you there. But that's alright - even with killer cops around:

"That the Negro American has survived at all is extraordinary -- a lesser people might simply have died out, as indeed others have."

- Daniel Patrick Moynihan


We're a people built to last,...

The Crack Emcee said...

John Lynch,

"That's the same punitive approach toward Black Americans that's been used for hundreds of years. It utterly failed."

Dude, they know the game - failure is the point.

Hate to disappoint them, but we do,...

damikesc said...

Doing nothing wasn't working.

Affirmative action has been tried for decades.

We've tried it your way and it categorically doesn't work.

Again, John, if YOU want to sacrifice YOUR children so somebody else that you feel bad for does well, good for you. Do so.

Don't expect ME to do the same to MY kids.

The Crack Emcee said...

"Either blacks are lazy and won't work, or it's unfair that they get special treatment in education and employment. Can't have both."

There is no people on this continent who can be said to have done more work but, still, whites openly call us "lazy" like they think we're deaf, too.

The clear message - that we don't work for our oppressors any longer - never occurs to them.

Because they're so sold on their narcissism, or think our greed is like theirs, or something else horrible they suffer from that we don't.

And then there's the "special treatment" we're getting. They never mention why. It's just generous whites being generous - as they have been documented as being for the last 400 years.

Sure - for most of that time they murdered us for learning to read - but why the "special treatment"?

Especially now when blacks are obviously just one Master's Degree away from world domination?

And employment? Why the "special treatment" when employment for blacks is so rewarding? Can't Jay-Z hire all of us?

And - of course - we "can't have both". So maybe - just maybe - we don't.

Maybe - just maybe - we have a rabidly racist nation that's oppressed it's black citizens for so long - and to such an unimaginable degree - we aren't doing anything to blacks but to whites?

Maybe we're ensuring their stranglehold will never again be able to hold us down, no matter what cockamamy reason they give for wanting to do so?

That wouldn't be "both" of anything you mentioned, but something totally new.

But - even as that - I don't think the blood-thirsty, money-hungry whites would go for it.

It's just not your way,...

sinz52 said...

John Lynch sez: "It seems to me that you aren't very imaginative in finding a solution to a problem that won't solve itself. "

What exactly is that problem?

As far as I can tell, race-based affirmative action has become a solution looking for a problem.

It is now being defended as a way to increase "diversity," a nebulous goal with totally undefined benefits.

DKWalser said...

@John Lynch

You said that affirmative action is the ONLY alternative to doing nothing. I pointed out that claiming affirmative action is the only alternative demonstrates a lack of imagination on your part. I also pointed out that affirmative action does little if anything to benefit the poor. Your response is to double down on the demonstration of your lack of imagination by again claiming that doing nothing is the ONLY alternative to affirmative action.

I'd leave it there had you not decided to top off your demonstration of ignorance by calling me a meanie. (Ouch! You wounded me with your harsh comments. Have you no decency? No human compassion?) Conservatives have made literally hundreds of serious proposals to deal with the problems of poverty. Do some reading -- start with Jack Kemp's empowerment zones and work forward. (There were serious proposals before Kemp's, but you've got to start somewhere.) My point is that conservatives have thought long and hard about how to lift the poor out of poverty. A decent person would be aware of what fact before maligning half the country as uncaring.

As for my being a meanie, over the last 3 decades I've counseled dozens of poor individuals and families. I've taught them how to budget, balance a check book, save for their future, set reasonable goals, obtain an education, find employment, reviewed/written their resumes, etc. It's been rewarding work. I've helped several families lift themselves out of poverty. And, I've done it all for free. What have YOU done?

Hyphenated American said...

"I don't bother myself with what "may" happen until it does - I'm black.

And we won,..."

Does anyone here thinks that always angry Crack sounds like a winner?

Hyphenated American said...

"What better encouragement to live a middle class life can there be? "

Easy, cut welfare and Medicaid.
As for Affirmative Action - no, it does not help create middle class.
1.People who use it are scarred for life (look at Crack, who is mentally disabled because of AA).
2. People who were discriminated because of AA will be hurt.

Hyphenated American said...

"And how do you do that from a policy perspective? Sounds like an excuse to do nothing. Doing nothing wasn't working."

Let's cut Medicaid and welfare. That's doing something, right?

"It seems to me that you aren't very imaginative in finding a solution to a problem that won't solve itself."

You forgot to define the problem.

"It's easier to blame people than give them an opportunity."

1. They have opportunity.
2. It's easier to give some people preferential treatment than actually figure out why they are failing.

"That's an attitude that takes pleasure in punishment rather than reward."

Stopping discrimination based on race is "punishment"?

"Affirmative action isn't free."

True. For one person getting advantage through it, one person gets hurt.

"It has to be taken advantage of. Someone has to show up to school and has to show up to work. That's middle class behavior. You want that or not?"

Why can't they show up at a school, which they deserve to be? That's real middle class behavior.

"Having not thought this through as a problem, it seems to me that you are more about punishing people for not acting the way you want rather than giving an incentive for the behavior that you say you want."

Getting into good school because of merit is not good enough? now we need to punish whites and Asians in order to persuade blacks to go to universities? And if blacks are treated equally with everyone else, this is punishment for blacks?

"That's the same punitive approach toward Black Americans that's been used for hundreds of years. It utterly failed. And it's completely unimaginative."

Apparently, what blacks had to survive was centuries of being treated equally with whites and Asians. You said it here.