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PaperclipPerfector  1yr ago (text post)   26925 thread views

Culture War Roundup for the week of September 25, 2023

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Affirmative action is "unlawful", but what exactly is the penalty if someone discriminates on the basis of race?

Well, civil rights law suits against institutions that result in that institution paying large monetary damages have long been a thing. So presumably going forward Harvard can no longer use "targetting diversity" as a defense against such suits?

It's a little curious to me that there was no monetary judgement attached to this case. When a company like coca-cola or Tesla is judged as having acted in a discriminatory manner, they face hundreds of millions of dollars in damages. So why was there no monetary judgement in this Harvard case?

At least in SFFA v. Harvard, the underlying complaint requested :

(a) A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, from the Court that Harvard’s admissions policies and procedures violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;

(b) A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, from the Court that any use of race or ethnicity in the educational setting violates the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;

(c) A permanent injunction prohibiting Harvard from using race as a factor in future undergraduate admissions decisions;

(d) A permanent injunction requiring Harvard to conduct all admissions in a manner that does not permit those engaged in the decisional process to be aware of or learn the race or ethnicity of any applicant for admission;

(e) Attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable legal authority; and

(f) All other relief this Court finds appropriate and just.

SCOTUS generally does not answer all questions in a trial (barring a few rare situations where it is the court of first resort); it only resolves questions of law that were appealed to it and the court granted cert. Because questions of law related to attorneys' fees are very settled, that wasn't at question in the SCOTUS case. Instead, this was determined after SCOTUS vacated previous decisions and remanded to lower courts, which found just under 50k USD in costs. We won't know about attorneys fees for a while yet, because the district court gave an extension to October 27th and defendants almost always contest it (you can watch here for updates), but I'd expect that they'll do better than Clement and Murphy in my last post.

So in that sense, SFFA didn't get cash because they didn't ask. But that just kicks the can down the road to why they didn't ask? The Title VI doesn't explicitly authorize private rights of action at all, but the courts have generally allowed compensatory (though not punitive) damages. Some of the why's for legal strategy reasons -- SFFA knew they had an uphill battle without also getting into debates on how much access to Harvard is worth -- but there's also a broader logistics problem.

Courts can issue preliminary injunctions to prevent irreparable harm. And harms that can be compensated are repairable, by definition.

((There are a few exceptions-in-everything-but-name around "dignity" harms, but gfl bringing that here.))

In most cases, this makes sense! But it's a bit of a problem for a case like this one, because Harvard (and other schools) demonstrably care more about keeping The Wrong Sorts Out than the cash, and virtually every case will exceed the length of time that someone can wait to get into college. So SFFA was wagering for future preliminary injunctions in other cases over the (often trivial) compensatory damages in this one.

((In practice, they've lost that wager.))

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