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The Supreme Court is expected to rule in June on Students for Fair Admissions v. President and Fellows of Harvard College, and is expected to strike down racial preferences in college admissions. The looming decision is starting to worry people in the DEI industry.
This Supreme Court case could spell the beginning of the end for affirmative action. It’s a looming crisis for corporate America (use reader mode to unmask the article. Paywalled version here).
There's some funny stuff in the article too, for anyone who's wise enough to not bring up politics or religion at work:
If the legal landscape does change, this is a chance to empirically test Richard Hanania's thesis that Woke Institutions is Just Civil Rights Law. If the majority of woke supporters (at least within institutions) are supporters only because of civil rights law, then support for wokeness could turn pretty quickly.
I would be happy to let corporations discriminate at will, as long as there's no law requiring them to discriminate in a particular direction. Let woke capital duke it out with meritocratic techbros and see which kind of company performs better. There's a lot of iffy research out there claiming that diversity has benefits for team performance etc. but this would be the true test. I'd expect the equilibrium to be a diversity of companies with different hiring policies based on their company goals and the purpose of each job role. Maybe for engineers and accountants meritocracy is best, while for public-facing roles the workers should be chosen by their appeal to customers, including by matching customers' race and other currently-protected characteristics.
For future reference, archive.is is better for getting past paywalls.
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Well gosh, I cannot understand how this could possibly be. When those companies are signalling as hard as they can:
"Hey, uterus-havers! (Because we are impeccably DEIB and would never use a discriminatory and hurtful term like "women" staff or employees) We're willing to pay if you have to travel to get rid of that clump of cells, because if you had a baby you'd probably be whining at us about maternity leave, and then if the brat "got sick" or "is graduating college" then at best you'd be thinking about them instead of putting your job first and foremost as the most important thing in your life, as is right and proper, and at worst you'd even be expecting paid time off to go attend to the spawn. So we, your socially progressive owners*, are going to graciously pay for your travel costs to prevent that happening (*when you take on a job, the job owns you, you should realise that by now if you want to 'have a career')".
Now what was that verse by somebody or other?
I thought "my private life is my own affair and nobody else's business"? But now your employer wants to know all about if you're knocked up and going to 'take care of that', so they can get "applause" for supporting you with the cost of a plane ticket or however much they'll give you. Do Planned Parenthood clinics do vouchers?
Well, two can play at that game.
It's easy to portray a working life as drab and meaningless, but one can equally do so for the non-working mother. FWIW I think both are oversimple and overgeneralised.
I big part of this is perception though.
It’s seen as working as most jobs (and yes, motherhood is a job) are. The thing of any of the jobs you choose to do (or in earlier eras were thrust upon you) were the reasons behind them. Mothers are raising the next generation of humans. Rocket engineers are building things that can take us to the stars. Cops and soldiers keep people safe. Teachers are passing down critical knowledge to future generations. See the difference? Focus on the tasks and even the most important jobs will seem like drudgery. I mean, the President is in boring ass meetings with people he has to pretend to like all day, broken up by reading really complex boring reports. Those are the tasks, but the job is to lead the entire country.
There’s mystique to any set of tasks. From the daily, they’re all boring. But the mystique comes from the importance of the job that requires you to do the tasks.
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Oh no, a middle-class housewife is living in a "comfortable concentration camp".
I think perhaps the author has no fucking clue what the original concentration camps were like, and that the Boer women in them were not living dreary lives eating peanut butter sandwiches with their children. And that working-class women often combined paid work outside the home alongside child-rearing and home-making duties, because of economic necessity.
"Woe is me, I have food, shelter, clothing, and the looming shadow of the bailiffs repossessing our goods is not over us, but I'm bored because my life is easy and convenient. How much happier I would be working in a job outside the home!"
two decades later "Woe is me! I have to work outside the home and be a housewife and home-maker as well! And that's only if I can find a man who wants to marry me! I thought we were supposed to have it all!"
I'll weep tears over the hard burdensome toil of the women expected to "chauffeured Cubs and Brownies" when this book tells me the author had direct experience, like my mother, of living in a house with no running water and hand-washing the clothes for herself, husband, two kids and bed-ridden mother outside in a plastic tub - all of which I saw as a child.
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I've always thought this was a ridiculous question. The answer is clearly "yes" and I don't think this would have been difficult for most people before WW2. Indeed, Ecclesiastes said millennia ago:
The human condition is the indignity of being an eternal soul bound to a finite body, trapped in a fallen world filled with suffering. Even non-Christians feel a similar void. I'm no Nietzschean but I sympathize with him when he says:
The default experience is to "struggle alone," to wrestle with the apparent fact that life has "no goal, no ambition, no purpose," feel that one is "buried alive" by the hideously mundane, tedious, and exhausting demands of daily life.
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This is a bit complicated because the working mother chooses to forego motherhood to a greater extent than the non-working mother foregoes work in most cases. It's pretty easy to work a part-time job while caring for kids, or leave the workforce for a few decades and then return later (though shockingly, relatively few voluntarily return to the workforce). It's very difficult to raise kids while working a full-time job, or put off having kids for a few decades to work on your career.
I get what you're saying though. Especially in the modern world, where household chores are much less important and time-consuming than they used to be, it certainly seems like everyone should be participating in life outside the home to some extent, regardless of your views on gender.
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I don't think /u/FarNearEverywhere's point was that working life is drab and meaningless, rather that employers are pretending to be covering the costs of their employees' abortions under the guise of feminism, but it's really just naked self-interest. Paying for an abortion is cheaper than paying for maternity cover.
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Affirmative action is legal permission to reverse-discriminate, not a requirement to reverse-discriminate. Companies are already able to compete on hiring policies just by saying "we don't have affirmative action at this company". There are laws which require companies to racially balance when they wouldn't want to otherwise, but these laws aren't affirmative action, and won't be affected by getting rid of affirmative action.
There is no such thing "reverse discrimination" to accept their behavior as anything other than "discrimination" full stop, is to grant the identitarians a victory that they do not deserve.
I've seen you post comments in opposition to idpol many times now but I'm still not sure what you believe. To me the argument that adopting idpol in the U.S. is tantamount to pressing the "defect" button in order to benefit at the expense of other groups who must coexist with you. So the logical response is for those other groups to start pushing "defect" themselves lest their lunches get eaten.
I'm not a fan o white nationalism and I think that "white" is a very incoherent, borderline-nonsensical concept in the U.S. But it seems like as a non-BIPOC person my long term choices are "do nothing and eventually pay reparations" or "start advocating for my racial group or coalition in order to counter enemy idpol tactics." I would prefer a third way. You seem to think there is one, so what is it?
I think the best answer is to reject the idea that these identities exist and get others to do the same. Identity politics are strengthened by people accepting the premise as most ideological constructs do. If you’re living in a country that’s based on religious ideals, playing in that sandbox makes it impossible to break out. If I accept that religion is real and should be a part of state government, then there’s no outside position. I might reject the ideas of Shariah, but if I’m rejecting them to implement the Talmud or Catholic Canons or something, we’ve already agreed on Theocracy, and the legitimacy of theocracy, we’re just arguing about the one on top.
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You're not wrong but where I suspect that where we differ is that I do not see rationality as prerequisite for morality. Contrary to a lot of other users here, I do not think that having a good reason to press the defect button absolves one from the responsibility of having done so. Bad things happen to bad people. Bad things also happen to good people. So it goes.
Like in the old Matthew Brodrick movie, the wining move is not to play.
As an even older saying goes, the game is rigged but it's the only game in town. Or perhaps you'd prefer the more recent "You may not be interested in the culture war, but the culture war is interested in you." "Not playing" is losing without a fight. Insisting that others who oppose the woke identitarians are wrong to play is giving aid and comfort to the woke identitiarians.
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The EEOC has gotten many companies to agree to settlements merely for disparate impact: https://www.google.com/search?q=disparate+impact+eeoc+settlement
Here's one example: https://www.eeoc.gov/newsroom/dollar-general-pay-6-million-settle-eeoc-class-race-discrimination-suit
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I don't think that's correct
Affirmative action is illegal by the black letter of the Constitution and indeed by civil rights law (which is race neutral -- formally, it is race which is a protected class, not minorities), but that doesn't seem to matter.
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My prediction is that everyone just fudges it and keeps discriminating. Blue states might pass some laws mandating discrimination, and they'll play the same shell game they do with gun laws. It will all get struck down, in a decade. By which time they'll have come up with a new bullshit workaround.
This still strikes me as an improvement. As the old saw goes, Hypocrisy is the tithe virtue pays to vice. Force the fucker to be hypocrites if they want to maintain the status quo rather than allowing them to maintain the false veneer of scientific impartiality. Make them expose who they are for all to see and let them be judged accordingly.
Their capacity for doublethink, and their capacity for making the bulk of the population swallow the doublethink, is essentially unlimited. You cannot expose them; they will continue to claim they aren't discriminating against whites and Asians even as they rather blatantly do it and claim to do so in other contexts.
We've been over this before
Just because you choose to live in a progressive bubble, and you choose to toe the woke line as means of protecting your status within that bubble, doesn't mean that everyone else must inevitably make that same choice.
I don't choose to toe the woke line. In fact, I don't toe the woke line; I'm at a company now where I can ignore the woke stuff and neither contradict nor acquiese to it. But my personal situation is irrelevant to the point. The Supreme Court can rule against discrimination against whites and Asians. The colleges will ignore the ruling. The administrative agencies will ignore the ruling. The lower courts will ignore the ruling. And none of them will see any problem with that, nor will the population at large.
Again, we've been over this, you might not like it but yes you do. After all, all you're doing in this post right here right now is mindlessly parroting progressive propaganda like a good little stooge.
After you get out of jail, I would like to see an Inferential Distance episode where you finally explain your strange predilection to insist that people believe things they vociferously repudiate and belong to groups they consistently and vocally loathe. Surely you do not hope for this to result in a productive discussion, nor are you so naive as to expect them to agree if you accuse them enough times.
And sure, bad faith exists. But if bad faith opponents are so persistent, it looks quite futile to me to do… this.
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5-day ban
Have you guys decided to tighten the screws or something? A minor spat between regulars doesn’t require the banhammer imo.
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Noticing what they do is not "parroting progressive propaganda". I'm not sure what accusing everyone who opposes them as being them and ultimately suggesting a retreat into mysticism is, but it isn't going to help either.
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This is exactly what will happen. The University of California has been flagrantly violating California's constitutional prohibition on affirmative action for decades with absolutely no consequences.
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I just want to highlight this, because it’s possibly a (partial)datapoint against the Hanania thesis that woke is just civil rights law.
The people pushing this stuff literally thought they were doing something broadly popular and were shocked when there were people upset with it. That bears repeating, because lots of us here seem to be cynical about it. This pushes towards corporate progressive platitudes originating with true believers, who might intellectually know that not everyone agrees with them but are shocked when they run into it irl.
Now obviously Hanania falls into the group of people who broadly hold progressive stances on cultural issues, he just doesn’t agree with woke, so it’s understandable that he tends towards an explanation of wokeness as realpolitik. After all, these people are his neargroup, so they must have logical reasons for doing things he disagrees with. But I think we underweight the idea that lots of corporate admin really believes in something in the general direction of this crap, doesn’t quite grok that it’s unpopular among people who aren’t literal cave trolls, and that it isn’t about a practical purpose at all.
They are. Lots of things are broadly popular (in the sense that 60%+ of the population support them) but where a large minority are sufficiently fanatical in opposition that being publically associated with them is a net negative. "Normal-ass employer-provided health insurance includes employer-paid abortions" is a prime example where you should do the popular thing quietly in order to avoid a damaging row with pro-lifers. Anodyne expressions of pro-LGBT sentiment like participating in Pride Month are similar - normies expect you to do it, but shouting about it draws unwelcome attention. The supporters of all these things know that there is a noisy minority of haters.
This applies more to companies which sell to consumers than companies that sell to other businesses. The universe of people who consoom product has a lot more Red Tribers in it than the universe of people who are able and willing to take corporate jobs.
Race-based affirmative action is the rare case where you are probably right - I think supporters genuinely don't grok just how unpopular it is with normies because they have successfully silenced opponents in their own spaces.
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This can be true, but it also ignores how a modern well run corporation (and admittedly not all of them are) works. There are many different factions, each with their own motivations, and it's not a straightforward matter to simply arbitrarily impose one's preferences on others.
Imposing more "training" requirements can't be done arbitrarily. The head of customer support has a spreadsheet which tracks the time taken to onboard a new agent, there's a cell which multiplies this by the number of agents they need to hire to deal with churn, and there's another cell which multiplies by agent wages. The net result is $cost. The head of customer support gets paid more if he makes this go down. He understands the value of diversity, but also maybe HR could tone it down and push some of the training into month 7 (average tenure of agent: 6 months) a bit and save the company $M?
Similarly, the head of backend engineering has a spreadsheet tracking time his devs spend on interviews. He also has a spreadsheet showing that he's hired 5 engineers/15 candidates from scraping github for cool repos and 0 engineers/75 candidates from HR's new diversity in eng program full of black people with an amazon certification (most of whom failed at technical screening). He totally supports diversity, so vitally important to have diverse perspectives on latency and uptime, but maybe HR could target this program better?
If HR can push back with "but lawsuits can cost $M", HR wins more of these arguments.
At a well run company, everyone is forced to produce such spreadsheets and justify them to their bosses. As the anti-empirical thread in modern wokeness (measuring stuff is raaacist) hints at, quantitative measurement more or less nukes most woke arguments.
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But it’s something they’ve sort of deliberately created for themselves. Conservatives have known for a long time that success in PMC and white colar work means being rather closeted about things coded conservative. It actually somewhat starts in college where expressing even mild disagreement with the ideas of modern progressive ideology is going to get you shunned and if you’re dumb enough to turn in a paper that expresses a conservative opinion you get worse grades. In the workplace, almost any such expression will be seen as negative and possibly get you reported to HR. As such, modern conservatives in the modern workplace, or at least the modern, urban respectable workplace are as closeted as gays were in the 1990s. You thought long and hard before telling people in your social circle and probably didn’t tell people in your professional circle because even though it’s officially tolerated, it would be risky.
As such, even though there are probably people in their social circles who are conservative, those people have learned to clam up. They were in the room when the “right” — pro-abortion— move was made. They just didn’t want the blowback from being the conservative in the room. I guarantee (especially given that the Budweiser part of InBev is in the midwestern largely Catholic city of St. Louis) that someone in that room knew the Mulvaney cans were a terrible idea that would cause backlash. They said nothing because being anti-trans is dangerous to their career.
I'll tell you what they were thinking. They were thinking, "we need to sell beer to children without getting in trouble." The Beer Institute (the beer industry self-regulatory organization) has a rule that beer advertising can only appear in media where 73.6% of the audience is 21 years of age or older. Do you think that Dylan Mulvaney's Instagram following is more or less than 26.4% under 21? They were hoping that they'd be able to get away with it because no organization wants to be seen as transphobic.
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73.6% looks like the percentage of the US population that is over 21. In other words, brewers won't advertise in media whose audience skews too-young-to-drink.
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This is an incredibly interesting take that I haven't heard before. If it's right they misjudged their audience badly but there is still a certain cleverness to it
Ted Cruz posted (a less fleshed out version of)that theory to twitter IIRC, and trying to corner the underaged drinking market is the most logical explanation.
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I honestly think the Mulvaney promotional can was the genius idea of the marketing lady - or rather the ad/marketing agency she hired - who had been put in charge of revitalising the brand, and that there wasn't much oversight. I don't know who her immediate boss was/is, but she was given the task "get the brand selling again" and that means "get young people drinking it" and she thought "where are the kids today hanging out? oh yeah TikTok and Instagram" and she went for "who's the big influencer name?" and here we go.
If there had been "people in the room" I do hope somebody would have gone "but what about our existing client base?" but I don't think there was even a room. She was going on in the interview about how she had been handed the task and I do think it was her and a couple others and she had the last say on what they'd do:
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I see at least one or two bad to terrible ideas a week. I don't have the political capital, emotional energy, or fucks to give to say something for every bad idea. At best I can prevent the ones that impact me, my team, and my immediate manager.
There's often no reward for the prevention of failure of others.
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After lurking here, I find myself relatively confused. You're the first person I've seen attempt to disambiguate between progressivism and wokeness. What is the difference between wokeness and progressivism, in your mind?
Basically what @hydroacetylene said. The thing that defines "progressives" is a belief in capital-P Progress. While the woke/identitarian types are almost always progressive, progressives are not necessarily woke.
Well, then progressivism is dead.
Any visions of bright future belong to the past and cheesy yoghurt commercials, the only promised things are various versions of apocalypse and only motives left are fear, hatred and revenge.
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Usually, "woke" just resolves to meaning "Progressive expect too much".
It's more that some people are very invested in the concept not having a label, because once it's identified it's unpopularity becomes impossible to deny.
This is why all the self applied labels from "Cultural Marxism" to "woke" are quickly abandoned when the opposition gets a hold of them, and are refraamed as slurs that are supposed to mean "you just don't like the left", or in this case " progressives expect too much".
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All woke is progressive but not all progressives are woke, and many are slightly confused by it.
I tend to see really focusing on oppression categories, critical theory, and victimhood as a big differentiating factor. To use the abortion example that kicked this off, nonwoke progressives think banning abortion is bad for women, but don’t hold the idea that there’s an actual literal patriarchy pushing it.
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Progressivism is the ideology of the PMC centre-left in the Anglosphere. You can see a certain commonality of thought, as well as an unbroken lineage of individual progressives, back to the turn-of-the-century capital-P Progressives like Teddy Roosevelt and Bob La Follette. The key constant ideas as I see it are:
Society is improving over time both materially and morally because of technocratic elites making correct decisions. We should strive to be on the right side of history.
Planning is possible and desirable.
Educated people should rule. Decisions which can be reduced to technical questions should be left to appropriately-qualified technical experts, decisions which have an unavoidable political component should be made by people with a broad education in morally correct thinking.
Education is good. More education is better.
There is too much economic inequality in the US c. 1900 or 2000. Slightly less economic inequality would be better, but not so much equality that the upper-middle-class can no longer enjoy an upper-middle-class lifestyle. 1950s US or modern Scandinavian levels of inequality are fine.
Separately from the inequality issue, real material deprivation (starvation/homelessness etc.) is very, very bad and we should try to eliminate it, first in our own countries and then globally.
Political violence (including war between countries) is very, very bad and we should try to eliminate it. (Lots of intra-progressive disagreement about the best way to do this)
Highbrow art is a public good and should be subsidised. Lowbrow art and the preferred intoxicants of the working class are corrupting and should be banned if possible. (Also lots of intra-progressive disagreement about what is possible)
Traditional religion is bad.
Bigotry is bad. (Lots of intra-progressive disagreement over which discrimination is bigoted and which is justified - pre-WW2 progressives being pro-eugenics is the most famous example)
These ideas are culturally universal and good people all over the world are already American progressives, even if they don' t know it yet.
Because Marxist socialism never managed to build a mass working-class movement in the Anglosphere, Marxism in the Anglosphere is a weird sub-sect of progressivism. (This isn't true in Continental Europe, where most countries had nominally Marxist parties with mass working-class memberships organised through the unions.) There is clearly a correlation between weird sectarian progressivism (including, but not limited to, being a Marxist in the Anglosphere) and weird lifestyle experimentation such that Orwell as able to say, correctly, that
and still be mostly correct a century later. (He also includes teetotallers and vegetarians in the list in other writings). But most progressives wear suits to their boring middle-management job and listen to NPR/Radio 4 while commuting from their suburban homes where they raise 1.6 children in a monogamous traditional family.
Wokism is the specific hobby-horse that organised progressivism has taken up in the 2010's.
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Categories in politics tend to be very ambiguous with very loose boundaries, so this is definitely tough to disambiguate. I don't blame anyone for just using "progressive" and "woke" as shorthands for each other. I personally do try to disambiguate, as someone who considers himself a progressive but who is also very much anti-woke, and not in the "they're just taking good ideas too far" sense but rather in the "their ideas are fundamentally broken and few costs are too high to stop them" sense.
I'd say it comes down to what I consider to be the core of "progressivism," which is, pithily and too reductively, the drive for "progress." Which obviously means different things for different people in different contexts, but I think most people would agree that it means moving forward, not just moving in some direction. But it's also incredibly easy to accidentally, despite all of one's best well-meaning good faith efforts, to move in some direction one finds convenient or attractive for whatever reason, and then just convince oneself that it's "forward." History is littered with examples of people causing immense amounts of pain, suffering, and misery while doing just that.
So for progressivism to actually live up to its name and not cause disaster as has been seen throughout history by many movements, it has to have and encourage the use of tools and methods and such to help reorient itself constantly, making sure that the direction we're pushing for is actually "forward" in some meaningful sense. Given what we've learned through science throughout human history and especially the past few centuries, it seems obvious to me that one of the most important tools for accomplishing this is open dialogue with oppositional forces - encouraging the people who hate my ideas to do their darndest to actually counter them using the strongest tools at their disposal. And to always emphasize my own skepticism when I find myself convinced that those people's ideas are evil or stupid or have been debunked, because I'm susceptible to biases as much as everyone else, and that bias is basically the easiest one to fall into. Only then, can we see what remains standing as the ideas and direction we can go to while being at the very least not completely unconfident (actual confidence is possibly always out of reach in this context) that we're moving "forward."
"Wokeness" goes directly counter to such tools, not just not encouraging them, but often actively suppressing them, deeming such speech as "harmful" and both pre-emptively shutting down such speech and retroactively punishing people who have engaged in such speech. In my mind, one cannot achieve meaningful progress through such methods except by dumb luck, and the odds of achieving meaningful progress through dumb luck seem very low.
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All wokeness is "progressive*", but not all progressives are woke.
*regressive
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Not the OP. But if I have to make a clear distinction - oppression olympics and victim mentality. Aka crybullying.
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This is just "I don't know anyone who voted for Nixon" all over again, or the Russian joke about the blank pamphleteer. The media being homogenously left provides them with a significant electoral advantage, but an even larger confusion problem when they don't win.
I don't think I know that one, but I can kind of guess as to the punchline.
Some play on this:
"A man named Rabinovitch who was distributing pamphlets in Red Square. In a matter of minutes, the KGB had found him and taken him to headquarters. Only there did the agents realize that the sheets of paper were completely blank. “But there’s nothing written here,” one of them said. Rabinovitch said: “They know quite well what I mean.”"
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The recent data breaches leads me to believe that this is a problem that has bigger implications than just DEI or people being banned online. It is national security risk and exposes customer records to hackers. Companies hire incompetent employees in part because they are paid less.
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I mean, it's pretty easy to argue that the Emperors' favor helped Christianity get entrenched but that doesn't mean it died with them
It might be too late.
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I'm almost certain that Hanania has the pathophysiology correct. His mistake is in thinking that this makes the problem easier rather than impossible. The Civil Rights Act is probably the singular most beloved act of congress in American history, maybe not by up-or-down popularity vote, but certainly by intensity-weighted metrics like "number of people who are willing to die to preserve it." Legislative repeal is a non-starter. Judicial review seems promising at first -- the Roberts Court espouses all the principles of freedom and limited government required to overturn the law on a pure legal basis -- but should they touch the cornerstone of modern American legal and ethical theory that is the Civil Rights Act of 1964 they would get packed within a month. Anyone hoping for Republican senate support should expect the John McCain Experience.
No aspect of the CRA would actually need to be repealed to achieve most of what Hanania wants, which is the elimination of disparate impact doctrine. That is not enshrined in the text but was instead created through bureaucratic EEOC decisions, executive orders, and legal decisions. One president who takes interest in the issue, along with a favorable decision from the Supreme Court, could eliminate the legal basis of the ideology.
If you think that isn’t enough, I’d probably agree. I am in favor of giving people the freedom to discriminate however they want. The only durable discrimination is that enforced by law. Unjust discrimination really is too unprofitable in a free market. If Mormons want to live in a neighborhood that bars residence of non-Mormons, they should be allowed to. They will pay for it through reduced home prices, but I have no desire to infringe upon their ability to make that choice.
Further, without repeal or amendment, businesses are still liable to bogus workplace discrimination claims that receive outlandish payouts.
So DEI would not disappear, it just wouldn’t be compelled by law. That would still be a meaningful step forward from the current state of affairs, with no legislation required.
This is false. While the Civil Rights Act didn't originally include disparate impact (the Supreme Court developed it in Griggs), it was eventually codified in the Civil Rights Act of 1991. See 42 U.S. Code § 2000e–2.
The Ricci v. DeStefano opinion briefly reviewed this.
I knew about the history of judicial decisions, but was unaware of that legislation. Thanks for correcting me! I think represents a meaningful challenge to the vision presented by Hanania in the Federalist Society speech to which I linked. He operates under the impression that only Griggs need be overturned. In my estimation, after reviewing what you’ve provided, is that the ruling of Griggs is now enshrined into law and no longer reliant on precedent.
What then is the path forward? My initial reaction would be a wide-reaching ruling that recognizes that intelligence is the single best predictor of job performance, and so any semblance of g-loading makes a test or requirement meets the standard “that the challenged practice is job related for the position in question and consistent with business necessity.” Standardized tests, IQ tests, leetcode, etc. would be de facto protection for all hiring on merit, with disparate impact damned.
Does that seem like a viable path forward in your estimation?
I've been reading up on the same, spurred by Palladium's recent piece on a related topic.
The 1991 CRA lists the goal "to codify the concepts of business necessity", but it doesn't actually do anything to define that term. The most common legal theory I can find is "No Alternatives", which states that you can use an aptitude test as long as there's no alternative that would have less disparate impact. The actual implementation seems to be a hedge magic of best-practices, derived through the flailing of HR departments reacting to lawsuits. Critically, the burden of proof is on the business -- if you're causing a "disparate impact", you're guilty by default unless you can prove the necessity.
So, there could be room for the courts to clearly spell out a way of proving business necessity. If I were a lawyer I'd go digging for court cases where such a proof has been successful.
No alternatives means nothing and is entirely up to discretion. If an alternative results in 50% more diversity hire but 1% less efficiency, is it viable? What about 10% more diversity for 80% less efficiency? I doubt there are many alternatives found that result in increased efficiency, and if there are, the firm that doesn’t implement them will be punished by the market.
Thanks for sharing the Palladium article. It’s a death spiral that I remain more pessimistic about than Hanania, and my ideations have shifted from how best to change it towards how best to avoid the catastrophic consequences.
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In general I agree with your take, at least, as it applies to the USA. But, what about India and its caste system. Discrimination by caste has been extreme there for over a thousand years, at least. The endogamy rates are inhumanly high, even the USA with its miscegenation laws and endemic racism couldn't match the extremeness of Indian caste endogamy. The results are not exactly desirable.
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I loathe the CRA. Of course, I hate most acts one Congress but that one is particular loathsome, especially when common carrier solved most truly problematic issues of Jim Crow south.
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it does not help also that it has 11 titles. good luck undoing all of that
As Hanania has pointed out (gee we've been talking about him a lot lately), you don't need to repeal any of the titles.
The language of the titles is not the problem. It is the wild interpretations of the titles by activist rulesmakers in the executive branch that has led to government overreach. One could solve the problem in the executive branch without involving Congress at all.
One thing that makes me pessimistic is that even putatively conservative justices like Gorsuch are capable of penning decisions like Bostock that continue to expand the breadth and authority of Civil Rights Law to regulate things that no one involved in creating the act could have even dreamed of. We all would have been better off if the original act had basically just said, "this is intended to benefit black Americans because they got the shit end of the stick historically, but has nothing to do with anyone else ever".
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The problem is regardless of the ruling, the DEI-pushers aren't going to change. Harvard (and other universities) will continue discriminating, the EEOC and other administrative agencies will continue to allow it, and the lower courts will mostly find rationalizations around the Supreme Court's decision. It'll be Heller and Bruen all over again, or Masterpiece Cakeshop, or that EPA decision discussed elsethread (which went to SCOTUS twice, showing that the first time didn't matter). When the Supreme Court rules for the right it generally has little effect (with the exception of Dobbs).
Bruen has had some impact, although at some point I do need to point out some of the state legislative and lower court massive resistance as a response to huadpe (though in turn, I expect huadpe will point to the absence of any Kim-Davis-level j'refuse). The first Sackett v EPA and Masterpiece Cakeshop were pretty overt and intentional punts (as was Fulton v City of Philadelphia and a few other noticable ones); .
But, yes, agreed more on the object level, here. We already have a lot of very strong examples of racially discriminatory preferences being explicitly banned, and then people simply jumping to the next pretense, just as we have a lot of examples of 'successful' courageous court cases over religious discrimination that have simply resulted in a shell game.
I upvoted and agree with this NYSPRA post as a factual matter (modulo some technical uncertainties I listed in reply), and it’s not wrong as a prediction. But I think the difference in subject matter focus to Nybbler’s concerns illuminates a ton of the disagreement in this sphere.
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