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PaperclipPerfector  1yr ago (text post)   26926 thread views

Culture War Roundup for the week of September 25, 2023

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That depends on whether the decision applies retroactively, which can be complicated.

Why wouldn't every decision apply retroactively? When a court interprets a law in a precedent-setting way, isn't the idea that the law is and has always been that way, and that earlier courts had simply gotten it wrong? If this specific case of SFFA v. Harvard had featured a specific plaintiff, wouldn't that person be entitled to damages? If so, why that person and not others? It seems to me that all decisions of this nature must be applied retroactively by virtue of the fact courts typically rule on events that happened in the past.

Decades? Certainly not, because of statute of limitations issues.

That's fair. We can limit it to the last few years. I don't think this changes much.

Even more importantly, a given applicant would have to prove that he or she would have been admitted, if not for the affirmative action policy, which would be extremely difficult, if not impossible.

This takes me back to my original point, which is that if this is truly the case, then the law isn't If You Discriminate On The Basis Of Race Then You Have To Pay That Person Some Amount of Money. It's If You Discriminate On The Basis Of Race Then Nothing Happens To You Because No One Person Can Prove Anything. I appreciate you educating me on tort law (I mean this sincerely; sorry if I come across as combative but I do appreciate the lesson on something I know very little about) but it's kind of irrelevant if we never get to the point where damages are being calculated.

That said, is the standard of proof really that an applicant has to show that they would have been admitted but for their race? For employment discrimination, as far as I'm aware, you don't have to prove that you would have been hired/not-fired but for your race/sex/etc. You only need to prove that your protected group status was a significant factor in the decision. Is university admissions different, and if so, is that difference spelled out in law?

I can assure you that that is not the case. First of all, why you think courts have discretion not to take a case is beyond me.

Maybe "take a case" is not the step where attempts at justice are thwarted, but my impression is that it is often the case that people are in theory legally entitled to some compensation but cannot reach the point where a court issues a decision on their complaint. My point is that in order for "AA is illegal" to be true, there must be a reliable way for an entity that engages in AA to be penalized for that violation, and from what you said and what I see, it doesn't look like that will be the case.

it's kind of irrelevant if we never get to the point where damages are being calculated.

There are many attorneys who make a very good living representing victims of illegal discrimination. Moreover, class actions are often an option. Were there truly no remedy, defendants would not settle suits. But they do.

And note that attorneys fees in successful civil rights suits, which are paid by defendants, can often be much greater than the damages. https://en.wikipedia.org/wiki/Uzuegbunam_v._Preczewski

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