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On what basis? The ruling said they can’t nakedly discriminate against Asians on the basis of race, it didn’t demand that they only consider meritocracy (in any case they still clearly have legacies, athletes etc). If Harvard wants admission to be dependent upon some nebulous character assessment that is completely legal unless there is recorded evidence that the assessors involved openly and explicitly discriminate, which there certainly won’t be from now on.
To stop it congress would have to pass a law mandating (for example) that all colleges that receive federal funding must use solely x meritocratic test to determine admissions. I have my doubts that would pass in any event, regardless of what happens with the filibuster.
it feels weird because this the whole point of 'disparate impact' decisions from the courts in the past. apparently, some groups were coming up with proxies to derive their desired racial preferences instead of using explicit discrimination but now Harvard and other universities are doing exactly that and its magically ok. its even more messed up because i'm pretty sure i've seen them make statements into the public record saying this was exactly what they were planning to do.
Disparate impact is very powerful in Title VII cases that govern employment issues (hence why justice can sue police departments for using IQ tests to hire cops). When it comes to colleges it’s more vague, because the ‘purpose’ of admitting a student isn’t clear (is it to have a diverse class, is it to create the most successful professionals, to produce the highest quality academics, to have a good time and make friends).
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No, this isn't the case. The court in Griggs explicitly accepted that Duke Power was NOT using proxies to derive their desired racial preference. That would have been illegal without accepting "disparate impact" as being a violation in itself.
"If the court accepts that, than the court is a ass — a idiot."¹
The Wonderlic test was first written in 1939; Duke Power Co. only adopted it as a requirement on the same day they could no longer legally discriminate directly on the basis of race.
The case should have fallen under the doctrine of noli meiere in cruro et dicere pluviam.
¹Charles Dickens, Oliver Twist.
...So on the day the law said they could no longer screen by race, they stopped screening by race and started screening by IQ test. And this proves to you that they were still screening by race, because they... complied with the law to stop discriminating by race?
What screening method should they have switched to, in your view?
The fact that they explicitly discriminated by race as long as they could legally do so indicates mens rea; that they sought to exclude Black Americans for being Black Americans.
The same method they used to screen white people prior to the Civil Rights Act.
@The_Nybbler:
That would have been somewhere in the vicinity of a plausible conclusion if, sometime between 1939 and 1964, Duke Power Co. had started requiring an IQ test for all applicants and stopped considering their race. The fact that they made the change not when the Wonderlic test was introduced, not when overt racial discrimination was becoming frowned upon, not when the Civil Rights Act passed Congress, but at the very last moment they thought they could get away with, points toward the grown-up equivalent of hovering one's finger 5 mm from someone's face while saying "I'm not touching you! I'm not touching you!".
In law it should probably actually matter if they're touching you.
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No, mens rea does not work that way. That you were doing something now-illegal before it was illegal is not an element of any future offense. In any case, it does not matter; the reasoning of the decision was based on the judges' conclusion that they were not, in fact, intentionally discriminating. Griggs found that disparate impact was illegal in itself, not because it was evidence of disparate intent.
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"They explicitly discriminated by race as long as they could legally" applies to anything they did after the ruling as well.
So any other method of screening that someone might want to try out is outlawed?
From 1939 (when the Wonderlic test was introduced) to 1964 (Civil Rights Act), they had the choice of (1.) whether or not to consider race and (2.) whether or not to consider (measured) intelligence. During that period, they chose to open doors for white people, no test required, but close them to black people, no matter how intelligent. This is evidence establishing motive; that their goal was to keep black people at the bottom of the socio-economic ladder.
Prior to the Civil Rights Act, Duke Power Co. did not use any screening method if the applicant was white; if they had had such a testing requirement prior to 1964, that would have been evidence that they were being honest about their motivations, and would have been justified in using a different instrument (unless they switched from a test that a random black person was half as likely to pass to one he was a hundredth as likely to pass). The fact that they felt no need to require any kind of test until they had to consider black people indicates that having any method of screening was a transparent attempt to weasel out of extending to Black Americans the same opportunities which had previously been reserved to the more melanin-lacking segments of the population.
There’s something you’re missing here. The social scientist and psychologist J. Philippe Rushton, who wrote (controversially) about race differences in intelligence and psychology, noticed an interesting phenomenon. He was discussing the large differences in average measured national IQ, and a student asked him how, if the average IQ of some African countries is in the low 70s (below the threshold under which a person is considered mentally retarded in the United States), those countries are able to sustain basic infrastructure and to maintain a semblance of functionality. They’re not thriving by First World standards, but the average citizen of one of those countries is able to adequately carry out day-to-day adult responsibilities, to hold down a job, to attend to children, etc. It’s not what you would expect from a society populated by the kids you see eating glue in American special education classes, to say the least. So, what is the IQ test failing to capture?
Now, of course, one can simply question the validity of the IQ test in question, assume that the average IQ of those countries is in fact considerably higher than measured, and obviate the whole discussion. (And, in fairness, many have pointed out flaws in Rushton’s work, such that it’s plausible that some of his data may have relied on questionable extrapolation from limited data.) However, let’s assume for a moment that the data we have on average IQ differences between groups is at least relatively reliable — and I do believe this is the case, given how consistent the broad patterns in measured data have been since IQ tests first began being administered.
We observe that white children in the U.S. who have an IQ of 72 are profoundly disabled; even besides their very low IQ, there are usually other things about them which mark them as clearly non-functioning. (Physical deformities, social ineptitude, etc.) Without having any access to IQ test results, it would still be easy for you to identify such a person as a poor candidate for an open job position at your company.
However, the black kids who get assigned to special education classes due to their poor IQ test results tend to be very observably different. They are far more socially competent than their white peers in those classes. They show no physical manifestations of disability, and they’re often indistinguishable from “normal” kids in conversation, except in academic settings or when trying to deal with complex intellectual tasks. If you met one of these people as an adult, it might be very difficult to clock him or her as intellectually deficient; this person could carry on a normal conversation, could be charming, could drive himself or herself to the job interview dressed like a normal person, etc. It’s only by specifically administering a test of cognitive aptitude that you would discover that this person is not going to be able to intellectually comprehend the tasks and concepts which will be required for the job. They “pass” as normal unless you use the test to ferret them out.
So, given this phenomenon, it makes sense that Duke Power opted to use an IQ test when hiring black applicants. With a white applicant, you can usually figure out in the interview whether the individual is too dumb to be able to do the job. With a black applicant, you need some extra information to help you make an informed hiring decision.
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This makes no sense. When they were told to stop discriminating, they changed their screening method into one that doesn't consider race at all, why should I assume that actually their motivation was to discriminate, just because the criteria are different than what they used to apply to white people?
So if I look them up now and it turns out they have some degree requirements, it must mean the goal of introducing them must have been racism, correct?
That does not follow at all. If your usual pool of applicants overwhelmingly have an aptitude level that passes your minimal threshold, you might choose to forgo screening because it's just adding cost. If the government tells you that you must consider a broader pool, where some of the applicants do have the necessary aptitude and some do not, and you then decide to add screening, that does not mean the screening is meant to filter out the melanin content.
If you want to prove that their aim was to filter out people because of their race, you have to prove that the test itself doesn't measure aptitude, or that that it's distribution is the same between the smaller and broader applicant pools.
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Ass or not, the court accepted it. Perhaps they felt Duke Power was not using the Wonderlic as a proxy for race, but had been using race as a proxy for what the Wonderlic measures.
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