Can states ban affirmative action in private universities?
Adam_Trask:
4th Circuit Case probably will be overturned if S.C. takes cert. There is a case on point (somewhat). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, the Court ruled a private school wasn't bound by the 14th amendment because there's no state action. Almost all of the private school's operating budget derived from public funds. However, that case is distinguishable a few ways. Most importantly, the case here was about employment practices, not policies concerning student conduct or admissions.
The opinion in the pending Harvard admissions case may help us get a sense of what the Court thinks in this area, but I think the o.p.'s question is open and won't be addressed there. From my perspective, it seems the current court is very critical of affirmative action. Robert's will likely write the opinion (in at least the UNC affirmative action case). Invalidating an affirmative action program in the Seattle and Louisville schools, he wrote that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. See Community Schools v. Seattle School District.
I think on the overarching question, private institutions are generally free to create their own policies, procedures, etc. Perhaps the o.p. is right that the States preserve the right to regulate private institutions as they see fit. And, imo, it appears the Court is more sympathetic to state's power at the moment. Thus, it seems unlikely the current S.C. would challenge a State's regulations of private colleges. National Pork Producers v. Ross exemplifies this trend. Thus, a case on o.p.'s question might be a perfect storm for conservative revanchism.
Personally, I don't think this kind of law would be prudent. I think it contradicts a conservative perspective on the relationship of private actors to the state in a number of ways. And while it might be a temporary win, I'm not sure this is outcome doesn't come back to hurt conservatives in a couple of different ways.
Indeed, I think this National Pork Producers case is a good example of why these kinds of contradictions will eventually undermine conservative goals. In that case, California was given a free hand to set national commerce regulations. I think conservatives are excited about this because it will give them cover for actions by Texas and Florida (for example). I think the first big flashpoint in this area will be over social media regulations. And there, I don't think it's a good idea to give state's such diverse powers. There is a real benefit to a unified national market. Truly, I think this leads to big national conflicts which can only be solved by Federal policy making where all states are represented (even if that representation is somewhat unequal). Our federal system is a delicate, and we should be worried about upsetting the balance of power too much.
politicallefty:
Quote from: Adam_Trask on May 31, 2023, 06:35:22 PM
4th Circuit Case probably will be overturned if S.C. takes cert. There is a case on point (somewhat). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, the Court ruled a private school wasn't bound by the 14th amendment because there's no state action. Almost all of the private school's operating budget derived from public funds. However, that case is distinguishable a few ways. Most importantly, the case here was about employment practices, not policies concerning student conduct or admissions.
I admit I've only given the current 4th Circuit case a cursory look. I do think charter schools are quite different under the law compared to straight-up private schools. Unless I'm missing something on this issue, if charter schools are allowed to discriminate on this issue, they would be outside the realm of other constitutional decisions such as Brown v. Board of Education. Either the 14th Amendment applies or it doesn't. There's no in-between when it comes to constitutional rights.
Quote from: Adam_Trask on May 31, 2023, 06:35:22 PM
The opinion in the pending Harvard admissions case may help us get a sense of what the Court thinks in this area, but I think the o.p.'s question is open and won't be addressed there. From my perspective, it seems the current court is very critical of affirmative action. Robert's will likely write the opinion (in at least the UNC affirmative action case). Invalidating an affirmative action program in the Seattle and Louisville schools, he wrote that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. See Community Schools v. Seattle School District.
[...]
Indeed, I think this National Pork Producers case is a good example of why these kinds of contradictions will eventually undermine conservative goals. In that case, California was given a free hand to set national commerce regulations. I think conservatives are excited about this because it will give them cover for actions by Texas and Florida (for example). I think the first big flashpoint in this area will be over social media regulations. And there, I don't think it's a good idea to give state's such diverse powers. There is a real benefit to a unified national market. Truly, I think this leads to big national conflicts which can only be solved by Federal policy making where all states are represented (even if that representation is somewhat unequal). Our federal system is a delicate, and we should be worried about upsetting the balance of power too much.
I am also expecting Roberts to be the one to write the affirmative action cases as well. He's passionate about this issue and his only majority opinions are from March and April, nothing from anything last year. I don't think the two are going to be disentangled. We're going to get them both at the same time. I don't know how it'll all come down in the end though.
As for applying National Pork Producers to social media regulations, I think you're missing the major First Amendment issue there. (Pork regulations don't implicate free speech rights.) There's also the issue that Congress has already legislated on the issue of online regulations and has implied preemption (if not explicitly). California's right to regulate the sale of pork in the manner prescribed by law is not an absolute constitutional right. It just doesn't violate the Dormant Commerce Clause. Congress has full authority to override/preempt California's law if it seeks to do so.
David Hume:
Quote from: Adam_Trask on May 31, 2023, 06:35:22 PM
4th Circuit Case probably will be overturned if S.C. takes cert. There is a case on point (somewhat). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, the Court ruled a private school wasn't bound by the 14th amendment because there's no state action. Almost all of the private school's operating budget derived from public funds. However, that case is distinguishable a few ways. Most importantly, the case here was about employment practices, not policies concerning student conduct or admissions.
The opinion in the pending Harvard admissions case may help us get a sense of what the Court thinks in this area, but I think the o.p.'s question is open and won't be addressed there. From my perspective, it seems the current court is very critical of affirmative action. Robert's will likely write the opinion (in at least the UNC affirmative action case). Invalidating an affirmative action program in the Seattle and Louisville schools, he wrote that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. See Community Schools v. Seattle School District.
I think on the overarching question, private institutions are generally free to create their own policies, procedures, etc. Perhaps the o.p. is right that the States preserve the right to regulate private institutions as they see fit. And, imo, it appears the Court is more sympathetic to state's power at the moment. Thus, it seems unlikely the current S.C. would challenge a State's regulations of private colleges. National Pork Producers v. Ross exemplifies this trend. Thus, a case on o.p.'s question might be a perfect storm for conservative revanchism.
Personally, I don't think this kind of law would be prudent. I think it contradicts a conservative perspective on the relationship of private actors to the state in a number of ways. And while it might be a temporary win, I'm not sure this is outcome doesn't come back to hurt conservatives in a couple of different ways.
Indeed, I think this National Pork Producers case is a good example of why these kinds of contradictions will eventually undermine conservative goals. In that case, California was given a free hand to set national commerce regulations. I think conservatives are excited about this because it will give them cover for actions by Texas and Florida (for example). I think the first big flashpoint in this area will be over social media regulations. And there, I don't think it's a good idea to give state's such diverse powers. There is a real benefit to a unified national market. Truly, I think this leads to big national conflicts which can only be solved by Federal policy making where all states are represented (even if that representation is somewhat unequal). Our federal system is a delicate, and we should be worried about upsetting the balance of power too much.
FL and TX can jointly mandate using one specific conservative sex education textbook, so that it becomes the standard.
Skill and Chance:
Quote from: politicallefty on June 01, 2023, 01:25:54 AM
Quote from: Adam_Trask on May 31, 2023, 06:35:22 PM
4th Circuit Case probably will be overturned if S.C. takes cert. There is a case on point (somewhat). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, the Court ruled a private school wasn't bound by the 14th amendment because there's no state action. Almost all of the private school's operating budget derived from public funds. However, that case is distinguishable a few ways. Most importantly, the case here was about employment practices, not policies concerning student conduct or admissions.
I admit I've only given the current 4th Circuit case a cursory look. I do think charter schools are quite different under the law compared to straight-up private schools. Unless I'm missing something on this issue, if charter schools are allowed to discriminate on this issue, they would be outside the realm of other constitutional decisions such as Brown v. Board of Education. Either the 14th Amendment applies or it doesn't. There's no in-between when it comes to constitutional rights.
I have a question about this. I thought that whether or not a given practice is unconstitutional sex discrimination is constitutional is subject to an intermediate standard compared to a stricter standard for racial discrimination? If so, there would be room to say that separate male/female dress codes are constitutional, while something like separate dress codes by race obviously would not be?
Also, I could see someone from an originalist standpoint taking a absolutist position that the various clauses of the 14th Amendment were enacted to prohibit any sort of racial discrimination at any level of government, but weren't meant to apply to sex discrimination at all. However, that probably only has 2-3 votes even on this SCOTUS.
wnwnwn:
Quote from: politicallefty on May 26, 2023, 07:24:04 PM
Most red states haven't even abolished affirmative action in the public sector. The states that ban affirmative action are a healthy mix of deep blue, deep red, and swing states. California was the first state to end affirmative action through ballot initiative and it was upheld by an even stronger majority in 2020. This is an issue where I don't align with most others on the left. I hope the Supreme Court issues a sweeping ruling eliminating affirmative action. The Equal Protection Clause means little when affirmative action is allowed. There are many other ways for schools to ensure diversity. They just want to take the easy way out.
That's beacuse the biggest opponents of AA are asian americans (who, by the way, are still victims of racism) and California is the most asian US state.
Navigation
[0] Message Index
[#] Next page
[*] Previous page