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naraburns  nihil supernum  1yr ago (text post)   36040 thread views

Culture War Roundup for the week of March 20, 2023

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Affirmative Action or Transparency, Pick One.

In the hierarchy of court systems, lower-level courts (typically referred to as trial courts or district courts) handle the dirty work of sifting through an ass-load of witness testimonies, pretrial hearings, exhibit litigation, etc. across what can amount to months or even decades of lawfights. For context, one of my felony criminal trials took about 4 days of testimony and generated about 1000 pages in transcripts. A civil trial with well-heeled and sophisticated litigants is going to kill way more trees.

Normally, appellate courts (such as SCOTUS) don't want to concern themselves with the nitty gritty detail of what exactly was said at every hearing of every trial. Generally speaking, appellate courts will only deal with questions of law rather than of facts, so if they're going to get anything at all, appellate courts want a tidy streamlined package of only the bare minimum information they'd need to answer the limited questions in front of them.

Public trials are one of the bedrocks of the American legal system. Even if you're not directly involved, the presumption for any legal case is one of transparency and the exceptions are limited. During a trial, jurors are expected to come to a decision based solely on what was admitted into evidence in front of them, and so whenever the parties have to discuss whether the jurors are allowed to see anything, this naturally has to be done outside of the presence of the jury (known as a "sidebar"). Keeping the jury out of the loop is routine, but lasts only until their job is done, and sidebar conversations are absolutely still part of the open record.

The only other shroud used by the court system is sealing. The most common applications, such as redacting bank account information or social security numbers, are banal and trivial to justify. At least on paper, if a court is going to seal anything, it must make a determination that there is an "overriding interest" requiring secrecy that trumps the presumption of openness. But in practice, parties routinely ask the court to seal either dockets, and sometimes even ask to seal the motions to seal (Eugene Volokh has done heroic work on this front, watching dockets across the country like a hawk and regularly filing successful motions to unseal).

The big affirmative action case before SCOTUS at the moment involves a lawsuit against Harvard for anti-Asian discrimination. SCOTUS made the unusual step of requesting everything from the trial court. The only reason this would happen is if SCOTUS has a reason to think they're not seeing the full picture, and at least in this case it seems like the trial judge has indeed been trying to hide some skeletons. Jeannie Suk, a Harvard law professor, has been watching this case with interest and noticed that the transcripts for the multiple sidebars were automatically sealed by the judge. Suk wrote about her efforts to pry open this sealed vault and what she found hidden inside.

What was Judge Burroughs trying to hide? I eventually obtained the joke memo and the surrounding e-mails, and what I read didn’t strike me as having been worth the fight to keep them secret. But the fight itself showed that both Harvard and the court expect the public to operate on trust that their decisions are not biased—an expectation that is all the more troubling as the Supreme Court’s likely ban on using race in admissions will drive the consideration of race further underground.

William Fitzsimmons began working in Harvard admissions more than fifty years ago and has been the dean of admissions and financial aid since 1986. The federal official who wrote the joke memo, Thomas Hibino, worked at the Boston location of the Office for Civil Rights, eventually serving as the regional director; he retired in 2014. Earlier in his career, he had worked at the Japanese American Citizens League. After Hibino oversaw the federal investigation into Harvard’s alleged discrimination against Asian American applicants, decades ago, he and Fitzsimmons became friends, and by 2012 their exchanges included banter about lunch dates and running races together, and teasing when one opted to sleep in. But the relationship wasn’t all palling around, because Hibino was still at the federal agency regulating Harvard. In April of 2013, he wrote to Fitzsimmons, “Regarding the impact of legacy on Asian American applicants, what proportion of AA applicants are legacies and what proportion of white applicants are legacies? Of course I’m happy to talk about this if necessary!” More than anything, the e-mails reveal the coziness of the federal regulator toward the regulated entity.

On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment that he described as “really hilarious if I do say so myself!” Hibino explained, “I did it for the amusement of our team, and of course, you guys”—presumably Harvard admissions officers—“are the only others who can appreciate the humor.” The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

Like Suk, I can't think of any possible justification to keep something like this hidden under seal. In a case about racial discrimination against Asians, it seems patently absurd to claim how Harvard officials and federal regulators pally around and openly mock Asians is somehow not relevant to the issue. It seems plain to me that the judge chose to hide it because it's embarrassing and inconvenient to Harvard. Anti-Asian bias also came up from education officials in the Thomas Jefferson High School case, where text messages plainly revealed their intent was to reduce the number of Asian students enrolled.

I'm very much against Affirmative Action policies. Although I'm not opposed in principle to remedial measures designed to narrowly target affected groups (although the amounts were pitiful, see Japanese internment compensation), painting entire groups with such a broad brush doesn't work when we have such an incoherent taxonomy of race. Beyond that, although Affirmative Action is often cited as evidence of a "woke pro-minority" institutional bias it seems just as plausible to conclude that privileged white people are hiding behind the "black and hispanic" veil as a way to disguise their motivation to avoid having to compete against Asians for the top spots (I'm open to evidence showing one way or another).

Harvard plainly wants to be able to discriminate on the basis of race. They may offer lofty justifications about why their particular kind of racial discrimination is justified or warranted or morally right, but no one is obligated to accept their statements at face-value. The fact that Harvard (with the help of a federal judge) is working so hard to avoid transparency only makes suspicion that much more warranted as a response to their actions.

In a case about racial discrimination against Asians, it seems patently absurd to claim how Harvard officials and federal regulators pally around and openly mock Asians is somehow not relevant to the issue. It seems plain to me that the judge chose to hide it because it's embarrassing and inconvenient to Harvard.

I suppose… but the facts being embarrassing and inconvenient for Harvard is hardly new, e.g., Hsu quoting Kronman in 2019: “‘…The facts are just so embarrassing to Harvard…’”

Facts that I would posit have been embarrassing for decades, given the old age of affirmative action.

And Kronman, as Hsu would like you to know, “is an anti-Trump lifelong democrat.” That is, Hsu and Kronman are both One of the Good Ones.

I imagine this category is largely half-white, half-Asian?

I imagine this category is almost entirely white, perhaps with a spanish or non-european surname.

My guess:.

46 percent said they are white, 18.1 percent of surveyed students identified as Asian, 14.3 percent as multiracial, 10.7 percent as Black or African American, 6.5 percent as Hispanic or Latino, 3.8 percent as South Asian, 0.6 percent as American Indian or Alaska Native, and 0.1 percent as Pacific Islander.

They'll call it holistic admission or something.

Realistically:

The same proportions Harvard has now, but perhaps even more tilted in favor of blacks and latinos.

Harvard (and similar schools) will find a way to further stack the deck in favor of blacks and latinos, and against Asians and whites. Regardless of what SCOTUS has to say. It would be a distinct "fuck you" to SCOTUS, wrong thinkers, and those of the wrong demographics.

Naively:

As Espenshade and Chung (2005) found—at top schools, in the absence of racial preferences, nearly 4/5 of spots occupied by blacks and latinos would be assumed by Asians. This would only be more extreme at a school like Harvard nowadays, given tail-effects and how things in general have progressed since then.

So a conservative estimate would be like, via cocktail arithmetic and rounding "nearly 4/5" down to 3/4: 46% white, 31% Asian, 14.3% multiracial, 2.7% black, 1.6% latino, 3.8% South Asian, etc. by applying a 1 - 3/4 constant to blacks and latinos and transferring the residual to Asians. Given the assumptions, this would already be very favourable to blacks, and to a lesser extent, latinos (or should I say latinx?).

Is the question "what will they look like if the supreme court bans racial preference?" Or is it "what would they look like if admissions were truly race blind?" I fully expect Harvard will try to skirt the rules even if the supreme court bans it. I think your numbers are are reasonable for the first question. The second question would be at least 40% Asian and not more than 2% black

I know quite a few (often rowers etc recruited for sports).

St Paul's or Eton, is the question I suppose, as there are seven of one and five of the other. Heavyweight men's crew is the only sport like that, however. It has 27 white foreigners, which is probably more than all the other sports put together. The other sports with substantial numbers of white Europeans is women's Field Hockey, with 13, and Men's soccer with 11.

The rest of the sports have a few sprinkled here and there, such as the three Israeli women in Track and Field, Eden Finkelstein, Shaked Leibovitz, and Estel Valeanu. Skiing has 2 Scandanavians, both male. Women's soccer has 5 Europeans, but one is Black. As I mentioned, Men's soccer has 11, (Iceland, England, Germany, Serbia, Monoca, Slovakia (2), Finland, Norway, New Zealand, and Sweden). Men's heavyweight crew is the big outlier. The other three crew teams have 4 (+ 7 antipodeans) combined (including another boy from St. Pauls).

My guess is 7% are Jewish, and perhaps a fifth or sixth of that is non-white (ie. half-Asian or half-black) Jews, meaning only 5-6% of the ‘white’ bucket is Jewish.

Stanford has 550 Jewish undergraduates, down from 600. This is about 8%, and indeed, about 1 in three white kids are Jewish in my experience. When I was there last, Harvard seemed significantly more Jewish than that. If Harvard really is less Jewish than Stanford, that would be a very big turnaround.

It is also, for example, extremely unlikely that almost 1% of Harvard admits are fully or even half native, or that 3% are half or more native Hawaiian or Mormon Samoans. Most likely both groups, especially the latter, are predominantly white.

I would guess the Hawaiians are mostly Asian, as that is the plurality there. Native Americans are mostly white, but what matters is tribal affiliation, not blood quantum.

The Crimson’s stats also separate ‘mixed race’, which will largely be half-white, half-Asian

I agree but would guess that almost all are half white half Asian, as all other mixes choose the better choices for college admission (Hispanic, Black, Native, or Pacific Islander). 3% of 20-24 year olds are mixed race in the US, so this group is hugely over-represented.

According to the Jerusalem Post, in 2015, Harvard's undergrad student body was 25 percent Jewish and 27 percent Jewish in Yale. 6% may be closer to the proportion of students who are religious Jews, but ethnic Jews are almost certainly much greater than 5-6% of the white bucket.

Inference based on last names is likely going to undercount, as there are many Jews with names that could not easily be inferred to be Jewish. Where I do agree is that these numbers are manipulated based on the political projection Hillel wants to make, and there is a lot of uncertainty. "5-6% of the white bucket" as ethnically Jewish is obviously absurd and the real percentage would be much higher. It's not exactly something they want to track- as much as they want to count beans for other ethnicities it's another case where Jews enjoy special treatment to avoid the possibility of any sort of scrutiny that is applied to other represented ethnic groups.

Goes to show just how superior Asians are compared to whites, with 1/9 of the population and an affirmative action regime that hurts them even more than it hurts whites they still manage to get 30% more seats than whites at Stanford.

If a white person complains about this, they're almost immediately called a racist. Most just keep their mouth shut...

Do you think there's good research on this?

Wouldn't surprise me if a significant portion of the remaining white population is in rural communities which almost never get recruited by the ivy league.

I don't have it on hand, but there was a study which found that signifiers of achievement in rural areas actually impose a substantial penalty on acceptance rates among the Ivy league.

Ross Douhat described it as: "one of the [Espenshade and Radford] study’s more remarkable findings:

while most extracurricular activities increase your odds of admission

to an elite school, holding a leadership role or winning awards in

organizations like high school R.O.T.C., 4-H clubs and Future Farmers

of America actually works against your chances. Consciously or

unconsciously, the gatekeepers of elite education seem to incline

against candidates who seem too stereotypically rural or right-wing or

“Red America.”"

Espenshade's subsequent characterization was that "We mentioned, as a relatively minor point in the book, that students who had participated in career-oriented extra-curricular activites—especially if they held a leadership role or won an award—had a slight decrease in their chances of admission to these elite colleges".

My bet would be approximately the same, with some deviations to account for the changing racial makeup of high school graduates. You'll probably see more people who currently identify as white instead identify as Hispanic/Latino, because everyone will know that AA is still widely used under the table.

Black or African American

This categorization always irks me. For Harvard in particular, a huge proportion (40% as of 2004, though they don't make these numbers readily available and it's hard to find more recent ones) of its Black students are international or first generation immigrants. This is weird given some of the common justifications for AA, particularly the "it's to make up for slavery" one. That's not to say the international ones don't deserve to be there; in my freshman dorm at a similar institution, they comprised about half the Black students and largely outperformed the ADOS half. But if I were ADOS, I'd be pretty pissed about Harvard trying to whitewash (blackwash?) its numbers by that particular grouping.

ETA my actual guess: 43% white, 19% Asian, 15% multiracial, 10% black, 4% South Asian, 8% Latino, 1% native or pacific.

Its my understanding that certain black immigrant groups like Nigerians are highly successful, on par with Asians and Jews. So, its not surprising they would be overrepresented. I would sat this is actually semi-good as it means Harvard is at least treating black applicants internally-meritocratically even while discriminating against other racial groups.

Just to clarify you mean that they are to Blacks what Jews and Asians are to whites; not that they are otherwise are not comparable to Jews or Asians? I would agree.

This is weird given some of the common justifications for AA, particularly the "it's to make up for slavery" one.

It isn't at all weird, because that is not a legal justification for affirmative action, and has not been for at least 20 years. Rather, schools can employ "narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." Grutter v. Bollinger, 539 US 306, 343 (2003). So, it makes perfect sense.

Perfect sense? Yeah if you buy that bullshit I guess. What educational benefits flow from a student body that all thinks the exact same way but is superficially “diverse”? If anything grads these days are dumber than ever, that’s what comes from ignoring g factor in admissions

Didn't know that Volokh did that. Props to him.

Here's an argument in favor of explicit, quota-based affirmative action compared to what exists now: it adds transparency instead of driving it underground. Clearly adcoms want to engineer the racial composition of their classes and will do so by whatever means possible. But avoiding explicit quotas just shifts AA mechanisms to illegibility and makes it impossible to discuss. Any debate around the extent, values, and goals of AA gets obscured by a bunch of sand being thrown up in the air. "We are objective and meritocratic, it's just that Asian Americans have ineffably worse personalities" and all that dross.

People can debate the value of AA itself (I'm probably more supportive of it in some circumstances than most here), but it's better to make it explicit so people can reasonably discuss it instead of getting sidetracked about whether and to what extent it's happening. And psychologically it's better for students to know that they're being held to different standards instead of gaslighting them about mysterious personality defects that they all have but group X doesn't.

openly mock Asians is somehow not relevant to the issue

I don't read the quote from the memo as mocking Asians; it's mocking admissions committees and the ridiculous standards they apply to Asians. It's doubtlessly still relevant for trial and there's no reason it should be sealed, but if anything I read some empathy toward Asians and an acknowledgment that they face a much, much higher bar than other minority groups.

Someone needs to get Californians to pass another proposition, one that bans any admission criteria except state residence and SAT results in UC and CSU.

Here's an argument in favor of explicit, quota-based affirmative action compared to what exists now: it adds transparency instead of driving it underground. Clearly adcoms want to engineer the racial composition of their classes and will do so by whatever means possible. But avoiding explicit quotas just shifts AA mechanisms to illegibility and makes it impossible to discuss. Any debate around the extent, values, and goals of AA gets obscured by a bunch of sand being thrown up in the air. "We are objective and meritocratic, it's just that Asian Americans have ineffably worse personalities" and all that dross.

People can debate the value of AA itself (I'm probably more supportive of it in some circumstances than most here), but it's surely better to make it explicit so people can reasonably discuss it instead of getting sidetracked about what's actually happening. And psychologically it's better for students to know that they're being held to different standards instead of gaslighting them about mysterious personality defects that they all have but group X doesn't.

I agree with this, though I admit I haven't thought too deeply on it. Clearly the desire to discriminate against Asians is there, and this desire will be fulfilled one way or another due to the people who have this desire being the same people who control the levers to power in this context. It's best if it's all out in the open, so that potential applicants, their parents, and others can more accurately assess both their chances and the standards of Harvard and other universities.

However, I suspect that the obfuscation is a very important part of the point that is also desired by the people who desire to discriminate against Asians, and as such any implementation of AA will inevitably have to be obscured. AA's value in providing a nice-sounding mechanism for engineering the admissions results they're targeting would be lost if everything were out in the open, and that function might be a critical, irremovable portion of it.

Obviously Harvard wants to discriminate on the basis of race; no one ever claimed they didn’t except themselves. I don’t think we’re going to get a straight answer as to why, exactly- and anyways, to me the more interesting question is ‘how did they get this sealed in the first place’.

Is it usual for federal judges to do this?

I don’t think we’re going to get a straight answer as to why, exactly- and anyways, to me the more interesting question is ‘how did they get this sealed in the first place’.

They got it sealed because they had a friendly judge and if you are an opposing party its bad practice to make a fuss about everything the opponent asks for if it isn't materially affecting your case in a significant way.

As to why they are obsessed with AA, there are a few charitable takes: Genuinely believe in oppression narratives, genuinely believe in restitution narratives, etc. There are also uncharitable ones like hatred of Asians/Whites, I personally think it is an aesthetic fetish.

Federal judges do indeed have a habit of rubberstamping unopposed motions to seal and this becomes the status quo up until the moment a journalist (or Eugene Volokh) catches wind of it and files a motion to unseal. The caselaw is very solidly in favor of open access, and so judges kind of act embarrassed at being caught with their pants down and make a big stink about having to grant the motion to unseal.

In this case, my guess is that SFFA didn't really want to agree to seal the document, but also didn't want to make a big fuss about a collateral issue since they were going to remain in front of that same judge (also, agreeing to seal sometimes comes along with settlements). The only people who are positioned to push the issue are outside observers like journalists, but they need to be lucky enough to know about it in the first place.

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