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01/27/2005

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Gregory Al-Wazihiri

"I do not know if this is true, but the media reported a few years ago that Jesse Jackson profiled when he heard someone walking behind him, and turned around to determine what group they belonged to!"

One person was walking behind Jesse Jackson. One person may or may not be acting strangely in the building when you call. Those situations in involve two people -- someone who is resonably afraid and another person. In other words, it is not profiling, because you already have reason to be afraid. Showing up at the airport with your children and some tickets is not a reason for an airport official to be afraid of you. Your one-on-one examples are also not instances of a bureaucracy filtering through thousands of people and singling out an individual on the basis of a presumption that someone of that sort is likelier to be guilty of XYZ than anyone else. A presumption is not a reason to be afraid; seemingly criminal behavior that makes you afraid is a basis to act on that fear. But simply being Arab is not seemingly criminal behavior.

Palooka

Mr. Becker, the problem isn't with profiling per se, it is with racial profiling specifically.

On a purely statistical basis racial profiling may be as "valid" as any other profiling technique, but as a matter of moral opinion, it is not.

I was profiled or flagged for extra inspection last time I flew because I had a one way ticket. I was not offended in the least by this. I would not expect someone to feel the same when they are profiled for their race, whether or not it is statistically valid.

As a follower (in the observation sense) of the law and economics movement, I understand the need to evaluate things from an economics context. While profiling is a contentious issue, it is defensible. But I have to say that I think you fail to recognize the inherent sensitivity of this issue.

In another thread on this website, a commenter just wrote of how affirmative action is just part of a greater problem in college admissions. That is, the many soft factors which may seem abritrary or capricious. This commenter has also failed to grasp the idea that people are particularly offended when its their race which is the basis of such discrimination. And that practicing racial discrimination (even in something as temporary and ultimately benign) as extra attention at the airport) creates ill will amongst the Nation's racial blocs.

Georgia O'Hanlon

"That is, the many soft factors which may seem abritrary or capricious. This commenter has also failed to grasp the idea that people are particularly offended when its their race which is the basis of such discrimination."

I had a friend who felt pretty offended when he didn't get into Yale because he was a fencer, whereas a soccer player who was otherwise indistinguishable got in. I don't think you can generalize about how anyone will emotionally react to being singled out for any reason. Who gets to say that race is more pernicious than which sport you play? You may say race is worse, but I think the fencer would disagree with you: in fact, he'd call you insensitive, just like you did Gary Becker.

RD

"I had a friend who felt pretty offended when he didn't get into Yale because he was a fencer"

Do you mean to say that your friend would have gotten in were he not a fencer? That Yale sets a higher bar for fencers than average students? What you mean (I think) is that the fencing recruits were not allowed as much academic slack as the soccer recruits. Do you think this is the same as a case of racial profiling?

In any event, when you are dealing with institutions that regularly set aside admission slots for the offspring of wealthy alumni, complainging about "unfair" admission standards on any other basis is at best confused.

Bill

Regarding your comment on profiling those in your office building on the week-end, would you have an objection if Becker called the police every time there was a black person in the building on the week-end. Is it appropriate to "profile" the profiler because it is a cost to the system as well for it to generate wasteful false positives, or impose costs on others.

Palooka

"I had a friend who felt pretty offended when he didn't get into Yale because he was a fencer, whereas a soccer player who was otherwise indistinguishable got in. I don't think you can generalize about how anyone will emotionally react to being singled out for any reason. Who gets to say that race is more pernicious than which sport you play? You may say race is worse, but I think the fencer would disagree with you: in fact, he'd call you insensitive, just like you did Gary Becker."

What you claim to be virtually instinguishable, I do not. I do not think that, as you on one of your many other handles claimed, student government or other academic extra-curriculars are without merit. You apparently think the only thing an admissions committee should consider is standardized test and GPA.

At least the case can be made that having a good soccer player enriches Yale (specifically their soccer term). As someone who doesn't support atheletic scholarships, though, you won't find much disagreement with me that as far as academic qualifications go, soccer is arbitrary.

It also differs, quite markedly, in that most can pick up a sport or extra curricular, while nobody can change their race. There is a substantial degree of self-selection, then, that I think you overlook.

The Constitution doesn't forbid unfair discrimination on the basis of what sport you play, it forbids racial discrimination. If you wish to conflate the two, fine. But the Constitution does nothing of the sort.

And a request: It'd be nice if you stuck to one handle in the future. :)

Palooka

One of the few reasons why legacy admissions are still socially acceptable is the presence of race-based affirmative action undermines any claim of unfairness. I would welcome the end of either.

Anonymous

Ok - couldn't resist. Is Prof. Becker's wife a young man of middle eastern origin?

Seriously though - I hope Prof. Becker recognizes the difference between an antsy, private-citizen professor calling the police when he sees a suspicious looking person in the building and an official government policy of profiling based on race. Yes, Al Quaida (or however you wish to spell it) is composed largely of middle-eastern men, and yes, they have vowed to kill Americans. It would be foolish of us not to take intelligent and reasoned precautions. But it is reactionary (and perhaps paranoid) to single out everyone with a good tan as a potential terrorist. We have to be smarter than that.

Finally, compensation for the profiled? On what ground? That the search was unreasonable? The question here is what types of searches *are* reasonable. We could just say, "to heck with the law; let the cops stop whom they want and we'll pay the damages suits later." But I thought we're discussing what the law should be. Besides, unless you do away with the exclusionary rule, illegal profiling will cost us a conviction when we actually catch a terrorist. Not that we've ever caught one in an airport, other than Cat Stevens..

Palooka

Super Troll,

I really don't care how your imaginary friend felt. I don't really care for engaging in argument with individuals who choose to disregard reality. When males pay higher prices on car insurance than females, most do not protest discrimination and whine about their hurt feelings. When a young woman goes in to rent a car, and discovers she can't, she probably doesn't feel like a victim.

Discrimination, profiling, grouping occurs every day in our society as a means to an end. Not all are equally rational, and not are equally ethical. Acknowledging that and that racial classfications are the most suspect of all shouldn't be hard. But pride is a funny thing.

You lump all "soft factors" in to one category. Few would argue that being black or hispanic is a qualfication for entering law school. It's a diferent circumstance entirely with the myriad of other grievances you whined on about. Participation in student government or other soft factors are arguably legitimate qualifcations. Having red hair or being left-handed or possessing a little extra melanin is when a "soft factor" truly becomes abritrary and capricious.

The fact you were denied admission to a school of your choice, despite being qualified, is good reason to be upset. It is not good reason to pretend racial distinctions are the same as any other. That is not how the Constitution has been interpreted, and that is not how society feels it should be. BTW, I'm disappointed in your last post. Maybe you should let the rage die down a bit before blathering on incoherently.

Palooka

"Palooka, you might note that Clarence Thomas pointed out in his Bollinger dissent just how illegitimate and irrational a university's interest in being "elite" is."

Actually, I think he was just saying it didn't meet the high bar of "compelling state interest" which application of the strict scrutiny standard requires. I think you're conflating--no suprise here--the rational basis examination with the strict scrutiny test.

Palooka

"If something fails strict scrutiny (say, for not being narrowly-tailored), that does not necessarily mean that the government did not have a legitimate interest and means that were rationally-related to acheiving it. Thomas was quite clear that the government's interest failed on all counts."

I absolutely agree that "if something fails strict strutiny that does not necsssarily mean the government did not have a legitimate interest and means that were rationally related to achieve it."

The problem is Justice Thomas neither said nor implied that it would fail the rational basis test. It's been more than a year since I read Grutter, but I checked. And I'm right. Not to get into a game of judicial gotcha, but this just illustrates your shotgun approach to debate. Throw out ten arguments, and hope it hits a target--any target.

My comment about your stubborness was not an implied racial epithet (I'm still trying to figure out how you got that out of it). It's self-evident that society and the courts have treated racial discrimination with special care, and that there are good reasons for this distinction. This is so obvious that I can only believe intellectual pride is preventing you from conceding the point.

I enjoy debate, but I would hope you would treat this forum with a little more respect, and refrain from juvenile behavior like posting under my handle, and resorting to ad hominem every other sentence.

As far as your arguments on due process, I believe that's for another day and another discussion (we've already wondered off topic). I don't know whether I agree on those specific points or not, I would have to consider them. All I intended to convey is that racial distinctions--both in law and in society--are treated with special scrutiny and sensitivity.

PalookaisGay

"I absolutely agree that "if something fails strict strutiny that does not necsssarily mean the government did not have a legitimate interest and means that were rationally related to achieve it."

What you said before is that I conflated the two ("I think you're conflating--no suprise here--the rational basis examination with the strict scrutiny test."). If you agree with me now, that means you were wrong about me conflating the two. Since you agree that you were wrong on me conflating the two, here is the full quote of what I wrote:

{{{{{To repeat: If something fails strict scrutiny (say, for not being narrowly-tailored), that does not necessarily mean that the government did not have a legitimate interest and means that were rationally-related to acheiving it. Thomas was quite clear that the government's interest failed on all counts. That is not "conflation". Let me quote from Thomas' dissent: "The absence of any articulated legal principle supporting the majoritys principal holding suggests another rationale." His point is that this is pure policy-making by the court; that the state instutitions themselves have provided no legitimate rationales -- in other words, this shouldn't even pass rational-basis.}}}}}


"The problem is Justice Thomas neither said nor implied that it would fail the rational basis test."

Yes, if you had quoted in context, you would see that you just agreed with: an implication.

"As far as your arguments on due process, I believe that's for another day and another discussion (we've already wondered off topic)."

No, the argument was about Due Process. I made two arguments; the one you disagreed with was the due process argument:

"Having red hair or being left-handed or possessing a little extra melanin is when a "soft factor" truly becomes abritrary and capricious."

See my reply:

{{{{{Furthermore, your nonsense about "truly arbitrary and capricious" behavior is just that: nonsense.

"Arbitrary and capricious" is language from the Administrative Procedures Act (APA), which is what Congress has laid down for federal agencies as the due process required for valid delegation of its power. The APA is not binding on state agencies administering state-created rights, e.g., universities.

So: as I "incoherently blathered," as you put it, state institutions are not bound by the APA's definitions of what arbitrary and capricious acts are when a state institution treats a citizen a certain way with regard to a state-defined benefit. The Due Process Clause would only come into play if you had a life interest, a property interest, or a liberty interest -- and that interest would be defined by state law that identifies when a state official (here the admissions board) must award the benefit to you. Where a state official has total discretion (perhaps you should look up the word "discretion"), there is no state law that identifies when you must be given the benefit, because there is never a circumstance when you must be given the benefit. Therefore, you have no interest in the benefit, and no process is due.

All soft factors are totally discretionary, so none of them require any due process: all of them can be administered in what would be an arbitrary and capricious fashion under the APA, if it applied. I made this argument before, but I don't think you understood it.}}}}}}

"It's self-evident that society and the courts have treated racial discrimination with special care, and that there are good reasons for this distinction."

That is an Equal Protection Clause argument. Not a Due Process argument. Note that I already addressed this point:

{{{{{{"That is not how the Constitution has been interpreted, and that is not how society feels it should be."

I don't see how strict scrutiny in racial classifications under the Equal Protection Clause has anything to do with unconstitutonal arbitrariness under the Due Process Clause (which is where my argument takes place). If you read what I wrote carefully, you would see that after discussing disparate impact (to show that any act that has a disparate impact on a suspect classification is a no-go, and sports ability could easily have a disparate impact on women, the disabled, or poor minorities) I moved away from discussing the Equal Protection Clause. Given that the method of interpretation is different under the two differing clauses, I'd suggest you not conflate your arguments.}}}}}

However, you fail to see the consistency:

"Not to get into a game of judicial gotcha, but this just illustrates your shotgun approach to debate. Throw out ten arguments, and hope it hits a target--any target."

Then again, you're not one to see (in)consistency, given that you talk about when a "soft factor" TRULY becomes arbitary and capricious (thus talking about the Due Process Clause) and then say:

"As far as your arguments on due process, I believe that's for another day and another discussion (we've already wondered off topic)."

Just for fun, here's another one:

"I enjoy debate, but I would hope you would treat this forum with a little more respect, and refrain from juvenile behavior like posting under my handle, and resorting to ad hominem every other sentence" and "My comment about your stubborness...."

Calling someone "stubborn" is not an ad hominem?

Since I am "stubborn" for thinking that Clarence Thomas wanted to show that the court was engaging in pure policymaking, and how irrational and illegitimate the University's conception of elitism was, let's go to Bollinger, which you hadn't read for a year ("It's been more than a year since I read Grutter") for more quotes:

"Unless each constituent part of this state interest is of pressing public necessity, the Law Schools use of race is unconstitutional. I find each of them to fall far short of this standard."

Wow. FAR short. Not just failing strict scrutiny, but falling FAR short of it. Gee. Anymore proof?

"Still, even assuming that a State may, under appropriate circumstances, demonstrate a cognizable interest in having an elite law school, Michigan has failed to do so here."

Wow. He assumes without conceding that an elite school is a cognizable interest. Why not simply concede it as a matter of judicial notice? Because he doesn't think it's even a "cognizable" interest, meaning it shouldn't even have standing in a court of law. (That would mean it would fail rational-basis, by the way.) Let's read on:

"Again, the fact that few States choose to maintain elite law schools raises a strong inference that there is nothing compelling about elite status. Arguably, only the public law schools of the University of Texas, the University of California, Berkeley (Boalt Hall), and the University of Virginia maintain the same reputation for excellence as the Law School.5 Two of these States, Texas and California, are so large that they could reasonably be expected to provide elite legal training at a separate law school to students who will, in fact, stay in the State and provide legal services to its citizens. And these two schools far outshine the Law School in producing in-state lawyers. The University of Texas, for example, sends over three-fourths of its graduates on to work in the State of Texas, vindicating the States interest (compelling or not) in training Texas lawyers. Id., at 691."

Now here you'll say: See, he's only talking about compelling interests. Compelling. But look closer. He says "(compelling or not)" in the last sentence. Meaning what? Meaning a state only has an interest PERIOD in maintaining an elite law school if "they will stay in the State and provide legal services to its citizens."

I don't want to go into Section IV, A, but Thomas clearly goes into both the First Amendment and Due Process in discussing academic freedom. In other words, the Due Process Clause is not off topic.

Later, Thomas discusses the Court's deference to the university. You may not know this, but rational-basis is the most deferent of review. That Thomas attacks the court's deference is a clear sign that he thinks that strict scrutiny hasn't actually been strict. In other words, he is making the case not only that the deference itself was incorrect, but that even given the deference, an alternate outcome could have been reached:

"The Courts deference to the Law Schools conclusion that its racial experimentation leads to educational benefits will, if adhered to, have serious collateral consequences. The Court relies heavily on social science evidence to justify its deference. See ante, at 1820; but see also Rothman, Lipset, & Nevitte, Racial Diversity Reconsidered, 151 Public Interest 25 (2003) (finding that the racial mix of a student body produced by racial discrimination of the type practiced by the Law School in fact hinders students perception of academic quality). The Court never acknowledges, however, the growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students. See, e.g., Flowers & Pascarella, Cognitive Effects of College Racial Composition on African American Students After 3 Years of College, 40 J. of College Student Development 669, 674 (1999) (concluding that black students experience superior cognitive development at Historically Black Colleges (HBCs) and that, even among blacks, a substantial diversity moderates the cognitive effects of attending an HBC); Allen, The Color of Success: African-American College Student Outcomes at Predominantly White and Historically Black Public Colleges and Universities, 62 Harv. Educ. Rev. 26, 35 (1992) (finding that black students attending HBCs report higher academic achievement than those attending predominantly white colleges).

At oral argument in Gratz v. Bollinger, ante, p. ___, counsel for respondents stated that most every single one of [the HBCs] do have diverse student bodies. Tr. of Oral Arg. in No. 02516, p. 52. What precisely counsel meant by diverse is indeterminate, but it is reported that in 2000 at Morehouse College, one of the most distinguished HBCs in the Nation, only 0.1% of the student body was white, and only 0.2% was Hispanic. College Admissions Data Handbook 20022003, p. 613 (43d ed. 2002) (hereinafter College Admissions Data Handbook). And at Mississippi Valley State University, a public HBC, only 1.1% of the freshman class in 2001 was white. Id., at 603. If there is a critical mass of whites at these institutions, then critical mass is indeed a very small proportion.

The majority grants deference to the Law Schools assessment that diversity will, in fact, yield educational benefits, ante, at 16. It follows, therefore, that an HBCs assessment that racial homogeneity will yield educational benefits would similarly be given deference.7 An HBCs rejection of white applicants in order to maintain racial homogeneity seems permissible, therefore, under the majoritys view of the Equal Protection Clause. But see United States v. Fordice, 505 U.S. 717, 748 (1992) (Thomas, J., concurring) (Obviously, a State cannot maintain traditions by closing particular institutions, historically white or historically black, to particular racial groups). Contained within todays majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejectedracial segregation."

He then shows how the court refused similar deference in the case of gender (an opinion written by Ginsburg, who I noted before believes that racial classifications are not worse than sex-based ones):

"Moreover one would think, in light of the Courts decision in United States v. Virginia, 518 U.S. 515 (1996), that before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character. In Virginia, a majority of the Court, without a word about academic freedom, accepted the all-male Virginia Military Institutes (VMI) representation that some changes in its adversative method of education would be required with the admission of women, id., at 540, but did not defer to VMIs judgment that these changes would be too great. Instead, the Court concluded that they were manageable. Id., at 551, n. 19. That case involved sex discrimination, which is subjected to intermediate, not strict, scrutiny. Id., at 533; Craig v. Boren, 429 U. S 190, 197 (1976). So in Virginia, where the standard of review dictated that greater flexibility be granted to VMIs educational policies than the Law School deserves here, this Court gave no deference. Apparently where the status quo being defended is that of the elite establishmenthere the Law Schoolrather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard."

If you think this all fanciful blathering, check out what else he says:

"Putting aside the absence of any legal support for the majoritys reflexive deference, there is much to be said for the view that the use of tests and other measures to predict academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law."

His argument can easily be summed up as:
1. This should have been strict scrutiny.
2. Instead it was more deferent than intermediate scrutiny.
3. It was as deferent as rational-basis.
4. Even under rational-basis, it still could have failed, because the state has no legtimate interest that is rationally-related to that interest.

It is only after all this that he writes WHAT I QUOTED BEFORE:

"The absence of any articulated legal principle supporting the majoritys principal holding suggests another rationale."

What he means by ANY is....ANY.

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