On July 20, from 12:30 to 2:30 PM EDT, the Association of American Law Schools (AALS) will be holding an online symposium on "New Books in Constitutional Law." Participants include Prof. Kermit Roosevelt (Univ. of Pennsylvania), Prof. Samatha Barbas (U. of Buffalo), Michael Mannheimer (Northern Kentucky Univ.), and myself. Prof. Scott Gerber (Ohio Northern Univ.) will moderate. The event is free and open to the public. Registration available here, along with the participants' bios. I think the event has a good mix of presenters, topics, and viewpoints.
I will be speaking about my book Free to Move: Foot Voting, Migration, and Political Freedom(Oxford University Press, revised and expanded edition, 2022), with a focus on the implications of my arguments for constitutional theory and design.
Here is the AALS description:
This webinar will discuss new books in constitutional law by Kermit Roosevelt III, Ilya Somin, Samantha Barbas, and Michael Mannheimer. Scott Douglas Gerber will moderate the webinar….
Prof. Roosevelt's "The Nation That Never Was" offers a powerful and inspirational rethinking of our country's history and uncovers a shared past that we can be proud to claim and use as a foundation to work toward a country that fully embodies equality for all.
Prof. Somin's "Free to Move" discusses how broadening opportunities for foot voting can greatly enhance political liberty for millions of people around the world.
Prof. Mannheimer's "The Fourth Amendment" chronicles how the courts' misinterpretation of the 4th and 14th Amendments has led them to hold federal and state law enforcement to the same constitutional standards.
Prof. Barbas' "Actual Malice" tells the full story of New York Times v. Sullivan by drawing on previously unexplored sources, including the archives of the New York Times Company and civil rights leaders.
Many thanks to Prof. Gerber and AALS for organizing this event, and including me.
Over at the Yale Journal on Regulation's Notice and Comment blog, T.T. Arvind and Christian R. Burset have an interesting post explaining that the basic impulse underlying the Major Questions Doctrine has common law roots. Without expressing any opinion on the merits of recent Supreme Court decisions that rely upon MQD, their post aims "to point out some similarities between the MQD and eighteenth-century approaches to identifying the limits of executive authority."
They write:
Our starting place is Entick v. Carrington (1765), an English case well known to the Founders. It concerned (among other things) the power of a Secretary of State to issue a warrant for seizing an author's papers in an investigation for seditious libel. Lord Camden, the chief justice of Common Pleas, held that such warrants were illegal. Here's how he explained his decision (according to the best report we have of his opinion):
As this Jurisdiction of the Secretary of State is so extensive; therefore the Power ought to be as clear as it is extensive.
In other words, as executive officials claim greater authority, their burden of proving the lawfulness of that authority rises. Or, as another reporter summarized Camden's decision, "one should naturally expect that the law to warrant [the exercise of executive power] should be clear in proportion as the power is exorbitant." In Entick itself, Camden found that seizing an author's papers involved "extensive" power, in part because of the (related or unrelated) secrets that might be disclosed as a result. Therefore, the government and its agents bore a heavy burden in proving that such power was lawful. They failed to meet that burden, and they lost the case.
As we explained in a recent article, Camden's framework was widely shared at the time. Even Lord Mansfield—Camden's great political and jurisprudential rival—agreed that exceptionally broad claims of executive power had to be supported by exceptionally clear legal authority. By the same token, a relatively minor exercise of power required a lesser showing of legal authority. The "extensiveness" of a power depended in part on how long its exercise lasted. The disclosure of secrets in Entick was irreversible and therefore "extensive." In contrast, Camden presented the temporary suspension of grain exports as relatively insignificant because of its limited duration.
As they note, this approach may align more closely with that suggested by Justice Barrett, than the more full-throated, nondelegation-inspired version of MQD. Put another way, the underlying impulse here "reflects a deeply held impulse in common law adjudication, which is far more nuanced than mere animus toward the modern administrative state."
This is in line with the approach that I have advocated, and (in my view) contrasts quite a bit with the Chief Justice's approach in West Virginia v. EPA. As I explained in my Cato Supreme Court Review article on the decision, the Chief Justice treated the QD as an on-off switch: If a question is "major," suddenly a higher threshold applies. This approach is problematic on many levels, not just that it lacks a grounding in basic agency law or common law principles. As I wrote:
In place of a threshold inquiry into whether the economic or political stakes of a case are sufficiently "major" or "extraordinary," courts would be better off focusing on the root question of whether Congress delegated the asserted authority to the agency and whether the evidence of such a delegation is commensurate with the nature of the authority asserted. In this way, the major-ness of the question at issue would be less of a threshold to be crossed than a continuum to be incorporated into the statutory analysis. The weight of evidence necessary to support an asserted delegation should be proportional to the breadth, scope, and novelty of the delegated power claimed.
In this regard, Biden v. Nebraska is a step in the right direction insofar as it departed from WVa v. EPA. In rejecting the Biden Administration's claimed authority to forgive student loans under the HEROES Act, the Court focused first on the relevant statutory language, only turning to the MQD to confirm its conclusions. Turning even further toward the approach suggested by Justice Barrett in her concurrence would be another step in this direction and, as the Arvind and Burset post suggests, do more to ground the Court's recent MQD jurisprudence in longstanding legal principles.
Imagine you were a black or Hispanic applicant who did not want to be given a racial/ethnic preference when applying to Harvard. Or you were an Asian American applicant who feared that your Asian background would be a hindrance. The obvious thing to do, beyond lying on your application, would be to leave the race and ethnicity questions on the Common Application blank. I have even seen an admission consultant suggest that if someone leaves those questions blank, admissions officers would treat your application as if you were somewhere in between white and Asian.
It turns out, though, that according to the plaintiffs' statement of undisputed material facts filed in August 2018, with citations to the record, Harvard did not accept "undisclosed" for race as an answer, at least for applicants who piqued its interest:
184. If a student does not identify his or her race, the Admissions Office has alternative ways to determine the student's race through other information the Common Application requires, including the student's last name, citizenship status, birthplace, language proficiency, country of birth of the student's parents, and the parents' last names and former last names. Ex. 204, McGrath Ex. 3.
185. The Admissions Office can also do outside research through social media to determine an applicant's race, which it has done in at least one instance. Ex. 20, Ray 31:16-32:10.
Fascinating, and troubling. I have interacted with several academics who support affirmative action on condition that racial identity is voluntarily self-disclosed and defined, rather than imposed. It turns out that this did not apply to Harvard, and likely other schools.
Early this morning, a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a stay of a district court's preliminary injunction against portions of Tennessee's newly enacted law largely prohibiting pharmaceutical and surgical gender-affirming treatments for minors. Writing for the panel in L.W. v. Skrmetti, Chief Judge Sutton (joined by Judge Thapar) concluded that the district court was wrong to issue a preliminary injunction, largely because the legal challenge--which sought to declare the statute unconstitutional under the 14th Amendment--was unconstitutional. Judge White concurred in part and dissented in part.
Chief Judge Sutton's opinion summarizes the decision:
Tennessee enacted a law that prohibits healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors. After determining that the law likely violated the Equal Protection and Due Process Clauses, the district court facially enjoined the law's enforcement as to hormones and puberty blockers and applied the injunction to all people in the State. Tennessee appealed and moved for an emergency stay of the district court's order. Because Tennessee is likely to succeed on its appeal of the preliminary injunction, we grant the stay.
The law in question, the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, prohibits surgical procedures and the administration of hormones or puberty blockers for the purposes of gender transition, subject to a few narrow exceptions. Last month, a federal district court in Tennessee issued a preliminary injunction against the law, as applied to hormones and puberty blockers, on the grounds that the law was facially unconstitutional. (The court did not reach the law's application to surgical procedures or its private enforcement provisions because the plaintiffs lacked standing to challenge those provisions.)
In his opinion for the court, Chief Judge Sutton identified the core issues:
A request for a stay pending appeal prompts four questions: "Is the applicant likely to succeed on the merits? Will the applicant be irreparably injured absent a stay? Will a stay injure the other parties? Does the public interest favor a stay?" Roberts v. Neace, 958 F.3d 409, 413 (6th Cir. 2020). As is often the case in a constitutional challenge, the likelihood-of-success inquiry is the first among equals. Id. at 416. In this instance, it is largely dispositive. While we assess "the district court's ultimate decision whether to grant a preliminary injunction for abuse of discretion," we assess "its legal determination, including the likelihood of success on the merits, with fresh eyes." Arizona v. Biden, 40 F.4th 375, 381 (2022) (quotation omitted).
There are two merits-related problems with the district court's order. One relates to its scope. The other relates to its assessment of plaintiffs' chances in challenging the Act on due process and equal protection grounds.
On scope, Chief Judge Sutton explained, the district court made two errors. First, it invalidated the law facially, as opposed to as-applied to the plaintiffs. Second, "it assumed authority to issue a statewide injunction."
District courts "should not issue relief that extends further than necessary to remedy the plaintiff's injury." Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). The court's injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million? Does the nature of the federal judicial power or for that matter Article III permit such sweeping relief? A "rising chorus" suggests not.
On the merits, Chief Judge Sutton explained why the district court's decision represented an unwarranted expansion of the 14th Amendment's limitations on state lawmaking.
Topics covered include affirmative action, legacy preferences, the student loan forgiveness decision, refugee policy, indictments against Trump, Vladimir Putin, political ignorance, and more.
New York lawyer Dmitriy Shakhnevich, who has a series of videos interviewing a wide range of commentators on legal and political issues, has posted the video of this interview with me, covering a variety of topics I have written about.
For convenience, here is Shakhnevich's list of the issues we covered and llnks to where they occur in the video:
0:00-2:29: Analyzing the Supreme Court's recent affirmative action ruling
2:30-5:50: The racial inequities and historical discrimination that affirmative action is designed to rectify
5:51-7:50: Will legal efforts contesting Harvard's "legacy admissions" policy prevail? 7:51-12:31: The Supreme Court's recent decision regarding student loan forgiveness 12:32-15:31: The impact of biased media and Tucker Carlson's departure from Fox News
15:32-17:45: Are the recent indictments of Donald Trump bad for the US?
17:46-20:18: Is the US doing enough for Ukrainian refugees in the midst of the Russian invasion?
20:19-21:52: Will Vladimir Putin ever be held accountable for the invasion of Ukraine?
21:53-25:06: The difference between "classic liberals" and the "new right" in the US
25:07-27:53: Is free speech under attack in the US?
There is much material there to annoy right and left alike, depending on the issue!
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: No judicial immunity for personally locking up some kids and no community caretaking exception for a cop on the beat.
House of Representatives (Jan. 2021): Due to the COVID-19 pandemic all members gotta wear masks. If you don't it's $500. Three members: That violates these five constitutional provisions. D.C. Circuit: Ah, but since the House was acting in its legislative capacity those don't matter because of the One Clause to Rule Them All, the Speech or Debate Clause. Legislative immunity and case dismissed.
In 2021, the feds and the state of Florida allowed the Seminole Tribe to offer online sports betting—indeed, the tribe obtained the exclusive right to offer online sports betting, even by people not physically on tribal land, while sports betting remained illegal in the rest of the state. Brick-and-mortar casinos objected, arguing that this impermissibly allowed gaming outside of Indian lands. D.C. Circuit: Some of this might violate state law, but we're not touching that. The feds' involvement in the agreement satisfies the APA.
NC State University professor rankles his colleagues by, among other things, criticizing a proposal to add a question about diversity to student course evaluations and writing a blog post declaring that the "[Association for the Study of Higher Education] Has Become a Woke Joke." His department responds by removing him from his program area and basically making it impossible for him to advise graduate students. He sues for First Amendment retaliation. Fourth Circuit: Sounds like he should have been more collegial. Dissent: "My friends in the majority . . . have developed a new 'bad man' theory of the law: identify the bad man; he loses."
How do you spell a challenge to a Navy COVID-19 vaccine mandate that, pursuant to orders from Congress, has been rescinded and where the Navy has, in addition, removed all prior adverse actions associated with denials of religious exemptions? Fifth Circuit: M-O-O-T. Concurrence: But I would also spell M-U-N-S-I-N-G-W-E-A-R. Dissent: Perhaps it's true of Caesar's wife, but the Navy is not above suspicion.
Allegation: After Montgomery County, Ky. officials are ordered to obtain exculpatory evidence from a witness and turn it over to the defense, a prosecutor instead tells the witness to destroy the evidence. (She does.) Sixth Circuit: That is "seemingly unbecoming" but nevertheless within the prosecutor's traditional role as an advocate. Absolute immunity. Concurrence: No, no, prosecutors don't have discretion to disregard a court order. We should have granted qualified immunity.
Seventeen-year-old student is required to participate in police ride-along for a class, and the Hammond, Ind. officer she shadows spends the day groping her, making lewd remarks, and even taking her to a remote location where he offers her to another officer for sex. Officer: This mere "boorish flirtation" was just "making for an exciting ride along." District court: Qualified immunity. Seventh Circuit: Reversed. "Sexual assault is an intentional act that never serves a legitimate governmental purpose."
Oregon law makes it a crime to surreptitiously record conversations with another person without their knowledge . . . unless you're a cop performing official duties, in which case, record away! Project Veritas—which has something of a history of secretly recording conversations—challenges the recording ban as a violation of the First Amendment. Ninth Circuit: And they're right. The ban is unconstitutional. Dissent: We should just sever the exceptions for law enforcement and then the ban is fine.
It is obviously unreasonable for an off-duty, out-of-uniform police officer to lose his temper on the road, follow another motorist home, box him in his driveway, scream profanities, and point a gun at him when the other motorist is nonthreatening. So says the Tenth Circuit, reversing a grant of qualified immunity to a (now-former) Chaves County, N.M. sheriff's deputy. Claims against the county, which hired him in spite of his history of volatile behavior, are on the table, too. (This is an IJ case.)
If you want to proceed anonymously in a lawsuit, it's best not to have a history of trying to drum up publicity for other lawsuits you've been involved in. So holds the Tenth Circuit in a decision denying leave to proceed as a Jane Doe, but allowing for some information to be filed under seal.
As settlers began occupying Wyandotte land in the 18th century, its people agreed to a series of treaties that removed them to present-day Kansas and then to Oklahoma. The feds later dubbed the treaties unconscionable, awarding the Tribe about $3 mil in damages with $100k earmarked to purchase lands for the feds to put into trust. The Tribe first invested the funds, later commingling them with other funds, and eventually bought a 10-acre lot in a Wichita, Kan. suburb it sought for trust status. The feds took the land into trust in 2020 and ruled the Tribe could operate gaming there. State: The murky accounting means that the funds used to buy the land weren't the earmarked funds, so no trust should follow and no gaming should happen. Tenth Circuit: The feds properly relied on expert accounting material in granting trust status and correctly concluded that the Tribe could conduct gaming on the parcel. Partial dissent: The feds needed to do more when deciding to allow gaming.
And in en banc news, the Ninth Circuit (over several dissentals) will not reconsider its decision that the Cruel and Unusual Punishment Clause prevents Grants Pass, Ore. officials from ticketing homeless people for, among other things, sleeping in public parks or in their cars. (IJ joined with some friends in an amicus brief to argue the Excessive Fines Clause prevents such ticketing.)
And in state court news, after two arguments and three briefings in which IJ (as amicus) made the case that it violates due process for state trial courts to depend on fees generated from convictions to keep their lights on, the Michigan Supreme Court decided not to decide—dismissing the case as improvidently granted. Phooey! But we wouldn't be surprised to hear these arguments again soon.
Friends, a very solid civil forfeiture reform bill is working its way through Congress at the moment, recently passing out of the House Judiciary Committee by a unanimous vote. Click here to read The Washington Post Editorial Board's endorsement of the legislation. Or click here for a breakdown of some of the bill's key provisions.
The article assesses strengths and weaknesses of the Court's decision, and what it will take to implement Chief Justice Roberts' admonition that "[e]liminating racial discrimination means eliminating all of it."
The Washington Examiner just published my article on the Supreme Court's recent ruling against racial preferences in admissions at Harvard and the University of North Carolina. Here is an excerpt:
The Supreme Court's ruling against racial preferences in college admissions not only upends the controversial policy but redirects the wider debate about what constitutes a "colorblind society" and how to achieve it. But much remains to be done to heed Chief Justice John Roberts's admonition that "eliminating racial discrimination means eliminating all of it."
The decision, centered on affirmative action policies at Harvard University and the University of North Carolina, severely restricts, even if it doesn't completely ban, the use of racial preferences for purposes of realizing possible educational benefits of "diversity…."
Roberts's majority opinion effectively outlined many of the flaws in diversity preferences, including nebulous goals, reliance on crude racial classifications and stereotypes, and the unconstitutional use of race as a "negative" to disadvantage Asian American applicants, among others. Justice Neil Gorsuch's concurrence correctly pointed out that the cases could have been resolved more easily by relying on the plain text of Title VI of the Civil Rights Act of 1964. Despite some flaws in the majority's reasoning, the decision is an important step forward. But much remains to be done to heed Roberts's admonition that "eliminating racial discrimination means eliminating all of it." Realizing the ideal of colorblind government will require steps that will be difficult for many on the Right as well as the Left.
I wrote about what it will take to fully implement color-blindness in government policy in greater detail here.
Speaking of pseudonyms, what well-known person was tried and convicted under the pseudonym Jose Gomez in 1971? (Having criminal defendants be tried pseudonymously is extremely rare.)
OK, she said it in 2006 as a dean, not a Justice, and about women and law review membership at Harvard, not SFFA and minority admissions, but I would be interested in knowing why she has expressed this concern about women, but not URMs.
Relatedly, my former colleague (now DC Circuit judge) Neomi Rao once presented a talk noting a perceived anomaly in Justice Ruth Bader Ginsburg's jurisprudence. Ginsburg insisted on strict, formal legal equality for men and women, even when favoritism would benefit women. She did not apply the same reasoning when it came to race. Ginsburg, when asked about how she reconciles the two positions, acknowledged that she had never thought about it. I wonder if Kagan has.
In the SFFA affirmative action case, Chief Justice Roberts for the majority, Justice Thomas, concurring, and especially Justice Gorsuch, concurring, argued that in addition to other legal defects in the defendants' affirmative action programs, the classifications used they used for "diversity" purposes were not properly tailored to serve the schools' interest in diversity.
Some of this discussion, especially in Gorsuch's opinion, came directly from the amicus brief filed on my behalf by Cory Liu. Undoubtedly, I'll have more to say about this in the future.
For now, though, I wanted to note Roberts' language. He wrote:
It is far from evident … how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.
For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as "Hispanic," are arbitrary or undefined. [citation omitted] And still other categories are underinclusive. When asked at oral argument "how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt," UNC's counsel responded, "[I] do not know the answer to that question."
Note the bolded language. I don't know whether Roberts thinks "Hispanic" is an arbitrary classification, an undefined classification, or both. But it strikes me that this language isn't getting the attention it deserves. The Supreme Court essentially held that "Hispanic" is a presumptively illegitimate classification, yet it's used all the time. I would have thought that would be big news.
UPDATE: It's irritating that the Justices continue to refer to the Hispanic classification as a "racial" one, even though it's been an ethnic, not racial classification, since it's creation in 1978. I've explained how this error came about, but in the interests of the sort of precision that Supreme Court opinions are known for, Hispanics are legally defined as an ethnicity who can be of any race. It's especially surprising that Roberts didn't get this right, because the fact that "Hispanic" is the only ethnic classification that is deemed a minority for diversity (and other) purposes strengthens the case for arbitrariness.
Achieving this goal will require a lot more than banning racial preferences in college admissions. That includes some measures that will make the political right uncomfortable, as well as the left.
In the Supreme Court's recent ruling against racial preferences in university admissions, Chief Justice John Roberts writes that "[e]liminating racial discrimination means eliminating all of it." It's a great principle. But much remains to be done to realize it.
If we truly want a color-blind government, we will have to go well beyond banning affirmative action in universities. And some of the necessary changes will annoy the political right, as well as the left. The Court's ruling won't immediately eliminate the use of racial preferences in education and elsewhere. And color-blindness cannot be achieved unless and until we also eliminate policies where the government continues to discriminate against racial and ethnic minorities.
Although the Court's rulings against racial preferences at Harvard and UNC are likely to severely constrain such practices in higher education, they may not put a complete end to them, because the majority didn't overrule earlier decisions permitting their use for purposes of pursuing "diversity." In addition, schools may well try to replace explicit racial preferences with supposedly "race-neutral" alternatives that try to target characteristics that correlated with membership in a particular racial or ethnic group. We already see such subterfuges at work in recent efforts to preserve racial preferences for blacks and Latinos, and keep down the percentage of Asian students at selective institutions.
It is also important to remember that higher education is not the only institution that uses affirmative action, and perhaps not the most important. Only a very small percentage of Americans attend highly selective colleges and universities (the kind that typically use racial preferences for affirmative action), and only a small percentage of the latter are either beneficiaries or victims of affirmative action policies.
There are widespread racial preferences in government contracting and in a variety of federal and state government hiring practices and programs. Last week's decisions signal that these preferences are more vulnerable to legal challenges than previously. But it will take much effort - and, probably, much litigation - to root them out.
Affirmative action in education, government hiring, and public contracting are policies espoused primarily by the political left. But policies favored by many on the right will also need to change if we are going to achieve color-blindness.
The discriminatory government policy that affects the most Americans is probably not affirmative action, but racial profiling by law enforcement. A 2019 Pew Research Center poll found that 59% of black men and 31% of black women say they have been racially profiled by police. Such perceptions are backed by numerous studies. Even powerful politicians are not immune. Black Republican senator and presidential candidate Tim Scott has recounted multiple incidents in which he was racially profiled by Capitol police. Racial profiling is especially prevalent in immigration enforcement, where it is even backed by official government policy - including under liberal Democratic presidents, such as Biden and Barack Obama.
Conservatives and other advocates of color-blindness have long advocated overturning Supreme Court decisions like Grutter v. Bollinger(2003), which authorize affirmative action in some circumstances. But few condemn United States v. Brignoni-Ponce (1975), the Supreme Court decision holding that federal law enforcement can use "Mexican ancestry" as a proxy for deciding which people to stop and detain in border areas.
Defenders of racial profiling argue it's a useful tool because membership in a racial or ethnic group may correlate with criminality. Young black males have higher crime rates than members of most other groups. In border areas, Mexican appearance is likely correlated with being an illegal migrant. But this kind of use of race-as-proxy is similar to affirmative action, whose defenders have long argued that being black or Hispanic correlates with being a victim of discrimination or a contributor to "diversity." If it is wrong for university officials to use race or ethnicity as a crude proxy, the same goes for law enforcement.
While most individual incidents of racial profiling inflict only very modest harm, the cumulative impact is substantial, spreading fear in minority communities and poisoning relations between them and law enforcement. True advocates of color-blindness cannot turn a blind eye to discrimination when the government officials doing it carry badges and guns and have the power to arrest, detain, and sometimes even kill or injure citizens. Otherwise, cynics will justifiably suspect we only oppose racial discrimination when it victimizes whites, as in the case of affirmative action.
Advocates of color-blindness must also confront the difficulties posed by facially neutral government policies that, historically, were enacted in large part for reasons of racial and ethnic prejudice. Exclusionary zoning restrictions on housing construction are a particularly important example, which has cut off millions of people from housing and job opportunities. Many such policies were enacted for the purpose of keeping blacks and other minority groups out of majority-white neighborhoods.
Color-blindness doesn't require abolition of all policies that were, at one time, adopted out of motives rooted in racial or ethnic prejudice. Among other things, difficult questions are raised by policies that were originally adopted for those purposes, but later perpetuated or extended for other reasons. The same goes for policies enacted out of mixed motives.
However, such policies probably do have to go if the evidence shows they would not have been adopted in the absence of a desire to discriminate on the basis of race or ethnicity. The Supreme Court has long held that, if evidence indicates the presence of racist motives in the adoption of a government policy, the burden of proof shifts to the state, which must show it would have adopted the same policy regardless. But, to understate the point, that rule hasn't always been effectively enforced.
I have focused on achieving color-blindness in government because the Constitution, government's monopoly power over various services, and moral principles all impose broader anti-discrimination obligations on state entities than on the private sector. The latter can legitimately engage in a variety of discriminatory policies that government cannot. But, if like many progressives (and, increasingly, some on the right, as well), you believe government and private discrimination are more alike than different, than private institutions will also have to change some of their policies. For example, private employers that have their own affirmative action racial preferences must abandon them.
Color-blindness does not, however, require a society where all racial and ethnic groups have similar income levels and occupational profiles. Many differences between groups are due to factors other than discrimination. For example, several Asian groups have much higher incomes than the national average in the US, as is also true of Jews and Nigerian immigrants, among others. It's hard to argue that's because US government policy is somehow biased in favor of Asians, Jews, and Nigerians.
Color-blindness also likely does not require somehow restoring the distribution of wealth and income to what it would have been in the absence of a history of discrimination. Given the enormous counterfactuals involved, it is likely impossible to determine what that distribution would have looked like. Moreover, if large-scale historical injustice have been averted, hardly any of currently existing Americans would have been born in the first place. History would have taken a different course, and the world would be populated by a different set of people. In that limited, but important, sense we are all actually beneficiaries of the great evils of history.
Despite these significant caveats, achieving color-blindness requires a lot more than many might assume. Confronted with the true scope of what must be done, some conservatives and others might recoil, and retreat to the idea that government may use racial preferences, after all, so long as they have a seemingly benign purpose. But, of course, that's the very idea underlying affirmative action; defenders of that policy genuinely believe it is essential to achieving racial justice. Moreover, history shows that seemingly well-intentioned racial and ethnic discrimination can cause enormous harm. The architects of exclusionary zoning and racist immigration policy surely believed they were benefiting society. But they in fact inflicted enormous harm for very little gain.
Ultimately, racial and ethnic discrimination by the state is unjust, because it judges people by morally arbitrary circumstances of ancestry and birth that they have no control over, and because history shows that its harmful effects vastly outweigh any putative benefits. At the very least, there should be a strong presumption against such policies that can be overcome only by overwhelming evidence indicating they create great benefits that could not be achieved by other means. By that standard, affirmative action, racial profiling, exclusionary zoning, and much else are likely to fall short.
UPDATE: I have changed the title of this post from the original "How to Make Government Color-Blind," and made a few minor changes in wording.
A panel of the Fourth Circuit handed down a 2-1 decision today in Porter v. Board of Trustees of North Carolina State University. The opinion can be found here.
Porter is a tenured statistics professor in the college of education. He was unhappy with the direction of the higher ed program, with which he was affiliated. In particular, he thought the college and the program had gone woke and was promoting social justice over good scholarship. He expressed those views internally in departmental email and departmental meetings. As a consequence, he was removed from the higher ed program on the grounds that he was insufficiently collegial.
The majority held that professorial speech in department meetings and the like is speech pursuant to their job duties under Garcetti v. Ceballos and does not fall under a narrow exception for research and teaching. As a consequence, such speech is entirely unprotected by the First Amendment and does not even reach the balancing test under Pickering v. Board of Education.
Such examples of intramural speech would be protected under traditional academic freedom principles, but they have not received a great deal of attention by courts under First Amendment analysis. I have been writing about applications of Pickering to professorial speech of late -- in the context of teaching and scholarship here and in the context of extramural speech here. This case does not have direct implications for either of those contexts, but it is not a great precedent for robust judicial protection of dissident faculty members at state universities.
An educational psychologist and expert consultant for the Pixar movie "Inside Out," John first made a name for himself in the area of anger management; he later expanded his work into high performance, stress management, positive psychology, and the creation of happy relationships. John helps men step out of the "man box" that society has created for them and that prevents them for fulfilling their potential as human beings.
Why do many men act irritable in romantic relationships but don't want to discuss what's wrong? Is it true that women want long-term relationships more often than men do? Come hear also what lessons John has learned from his own romantic past and what he believes people should look out for on the dating market!
Romance scams remain a (growing) international problem. I am quoted in this CBC News story about a Calgary woman who lost almost 500K Canadian dollars:
Legal expert Irina Manta says people could try more exclusive and expensive online dating services to receive a better vetting process.
But in the meantime, she says, people need to stop blaming the victim.
Manta is a law professor at Hofstra University in Hempstead, N.Y., and the founding director of its Center for Intellectual Property Law.
She says it's tough to put yourself in someone else's shoes. She says sometimes people are down on their luck through no fault of their own. And sometimes, she says, there can be rational reasons why people brush away red flags.
In these cases, she says, it might be a limited dating pool.
"If there are not a lot of awesome people that might want to be in a partnership with you, there's a chance this is not a good person. But maybe there is a chance this is a good person. You're going to sort of keep going for as long as possible," said Manta.
Every year, Randy and I add a handful of new Supreme Court decisions to our casebook's supplement. And I make it a point to edit the case the day it comes out. Doing so forces me to fully understand a case before I talk about it. (I marvel at op-eds written within hours of the release of a two-hundred page opinion!) Last year we added nine cases to the supplement: Dobbs, Bruen, Kennedy, Carson, WV v. EPA, City of Austin, Shurtleff, Torres, and Vaello-Madero. This term was far slower, and five made the cut. You can download them all here:
I considered for inclusion three other cases that were close, but ultimately did not make the cut: U.S. v.Hansen (overbreadth), Samia v. U.S. (Confrontation Clause), and Counterman v. Colorado (threats).
