Why Evolution is True is a blog written by Jerry Coyne, centered on evolution and biology but also dealing with diverse topics like politics, culture, and cats.
You didn’t have to be a genius to predict this one, especially if you paid attention to the Justice’s statements during the hearing. By a vote of 6-3, and strictly along political-spectrum lines, the Supreme Court struck down race-bace admissions at Harvard and the University of North Carolina. The three dissenting justices were Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor, with the majority including Chief Justice John Roberts and associate justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Click to read, though I found a partial version of the article archived here. It’ll be interesting to read the full decision, to which there’s a link below.
The Supreme Court on Thursday ruled that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, curtailing affirmative action at colleges and universities around the nation, a policy that has long been a pillar of higher education.
The vote was 6 to 3, with the court’s liberal members in dissent.
The decision was expected to set off a scramble as schools revisit their admissions practices, and it could complicate diversity efforts elsewhere, narrowing the pipeline of highly credentialed minority candidates and making it harder for employers to consider race in hiring.
More broadly, the decision was the latest illustration that the court’s conservative majority continues to move at a brisk pace to upend decades of jurisprudence and redefine aspects of American life on contentious issues like abortion, guns and now race — all in the space of a year.
The decisions, though coming down to the same thing, apparently differ in the methods that the judges saw as discriminatory. UNC didn’t use the “holistic” admissions procedure at Harvard, which the school defended vehemently (as did two appellate courts), but which used bogus “likeability” scores to discriminate against Asian Americans. (That these were mendacious was revealed by showing that the lower scores of Asians were given only by admissions officers who hadn’t met the applicants, not by those who actually interviewed them in person.)
The two cases were not identical. As a public university, U.N.C. is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute.
In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.
The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions.
“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the court, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. “The student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite,” he wrote.
The court’s three liberals dissented. Society “is not, and has never been, colorblind,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People.”
Lee Bollinger, Columbia University’s president, expects five years of chaos before higher education fully adjusts to the new legal landscape, as committees and task forces—already in place at many schools—explore ways to employ income levels, socioeconomic factors and other race-neutral factors to maintain diversity.
Although long expected, the decision still was a shock to academia. “Nobody really believes it’s going to happen, even though all the evidence is right in front of you,” Bollinger said in an interview this month.
. . .But at oral arguments, several justices focused on another passage in O’Connor’s 2003 opinion, where she noted that minority enrollment had increased in the 25 years since the Bakke case.
“We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote.
The majority opinion in that case from a generation ago, Grutter v. Bollinger, didn’t say preferences could continue until “you’re satisfied that diversity has been achieved or something vague like that,” Justice Brett Kavanaugh told UNC’s lawyer. “It said 25 years in there.”
The Harvard and UNC decisions, 237 pages long (and bundled), can be found by clicking on either of the screenshots below. which go to one pdf:
A lot will have to change, and even though schools may be in shock, they should have expected that this would happen and prepared for it. For prepare they will, trying to find workarounds that are legal. What exactly is legal will require a close reading of the decision.
Your take? One thing that nobody should be is surprised.
Schools are already issuing letters reassuring everyone. Here’s Harvard’s (I left off some of the signatures):
Well, here’s one case where I can’t agree with Glenn Loury, who heaps praise on Supreme Court Justice Clarence Thomas in Loury’s Substack post below. (There’s also a video.) A quote:
The vilification of Clarence Thomas needs to stop. Actually, I’ll go further than that. Clarence Thomas deserves permanent public recognition for his achievements and service to the country. Schools should be named after him. Whatever his past sins, he has served on the Supreme Court for three decades. He has risen from nothing to become one of the most powerful and influential public officials in the country. Yes, he is a conservative, and his views are unpopular in some quarters. But that should not blind us to the magnitude of his accomplishments.
There is no reason that a school or library or public park shouldn’t bear the name of Ruth Bader Ginsburg. Whatever you think of her opinions and ideological orientation, she was a significant figure on the Supreme Court, and so she is a significant historical figure. That’s undeniable. Equally undeniable is the significance and influence of Clarence Thomas. As John notes in the following excerpt from our most recent conversation, Thomas’s career before he ascended to the Court may not have merited a special place of honor. But he is now arguably the most influential justice currently serving. He may not have originated any school of legal thinking, but his opinions will remain consequential for decades after he retires.
Click to below to read more, or listen to the video below, which is embedded in Loury’s post (the post has a transcript of Loury’s discussion with McWhorter, which you can see in the video). They don’t really agree on this one!
I’m not down with a lot of the vilification of Thomas, as who knows what happened during the Anita Hill affair? If you believe Hill, as I did, he was a sexual harasser but not a sexual predator. But I am adamant that Thomas doesn’t deserve big kudos and plaudits. He’s a so-so Justice whose decisions have, on the whole, been bad for America. His “due” is simply the respect afforded any human being, but beyond that. . . crickets from me.
But Loury apparently thinks that Thomas deserves big plaudits for four reasons:
a.) for getting to the position of Justice as a black man from a background of abject poverty—though of course he was appointed by George H. W. Bush largely because he was both conservative and black, a conservative-acceptable version of the much greater justice he replaced, Thurgood Marshall. I disagree with many of Thomas’s decisions, though he has voted “properly” in favor of First-Amendment issues in some cases. I don’t deny he’s a smart man and has worked hard to get where he is, and I won’t dismiss him as a sexual predator. No, I dismiss him because I think his diehard conservatism and fabricated “originalism” have been bad for America. But listen to Loury below and make your own judgement.
b.) for being on the court a long time.
c.) to give a big a slap in the face to those people who have demonized him as a “sexual predator” for what Anita Hill said during Thomas’s confirmation hearings. It also repatriates him in the eyes of those who think he’s “politically obstreperous” and thinks for himself (Loury thinks that people who say that are racists.)
d.) for instantiating the American dream by achieving success through hard work, and even when he was held back by racism.
Race, hard work, and longevity on the bench are his “attributes”. But only “hard work” is something to be applauded. “Longevity” isn’t always a virtue, for there’s a lot of perks you get (like free vacations!) by being one of the nation’s most powerful Justices.
McWhorter weighs in at 6:55, saying that “it’s hard talking about Clarence Thomas, for a million reasons.” But McWhorter wonders what positive accomplishments Thomas made. Unlike Marshall, who had a long record of civil rights activism before becoming a Justice, and even unlike Scalia, whom McWhorter consider the “father of originalism”, what did Thomas do that makes him stand out from other Justices? Loury admits that Thomas has been just a “yeoman contributor to the country” as a justice and doesn’t have “a great degree of accomplishment” comparable to that of other justices.
And that, ladies and gentlemen, brothers and sisters, comrades and friends, is it. We should laud Thomas, says Loury” as being a “bright black man who made good in America”. Yes, that’s true, but did he DO good in America?
And a “yeoman contributor to the country” is not exactly high praise! I think Loury’s judgment slipped here, perhaps because they’re fellow black conservatives who are smart and accomplished, which gives them a kind of kinship.
I have a serious question, and no, I’m not a Republican or a Nazi for asking it. According to the Associated Press, 17 states have restricted or banned “gender-affirming care”:
At least 17 states have enacted laws restricting or banning gender-affirming care for transgender minors, though judges have temporarily blocked their enforcement in some, including Arkansas. An Associated Press analysis found that often those bills sprang not from grassroots or constituent demand, but from the pens of a handful of conservative interest groups.
Many of the proposals, as introduced or passed, are identical or very similar to some model legislation, the AP found. Those ready-made bills have been used in statehouses for decades, often with criticisms of carpetbagging by out-of-state interests. In the case of restrictions on gender-affirming care for youths, they allow a handful of far-right groups to spread a false narrative based on distorted science, critics say.
The “distorted science” appears to be mainly the claim that puberty blockers are unsafe. But in fact their safety is in question, and so that’s not “distorted science.”
We don’t know their long-term effects, we know they do have some inimical effects, and at any rate the lack of good long-term data has impelled several European countries to allow blockers to be used only in experimental clinical trials.
Below is what my understanding of “gender-affirming care” includes. I may be wrong, and I haven’t read the bills. but my understanding of the procedure doesn’t make me rush to assure everybody that it’s fine, and that only transphobes would support them. To me this brand of care involves two primary ways of treating a gender-dysphoric child:
My view was that “gender-affirming care” involved not a therapeutic probing of gender-dysphoric children to see if they may have been gay, and to generally explore their dysphoria—a rather long process of therapy—but rather a rush to affirm a child’s conclusion, or the conclusions of their parents, that the he or she feels as if they were in the wrong body. Instead, I thought “gender-affirming care” was what its name implied: not empathic but objective therapy, but rather a rush to affirm what the child or its parents had already concluded about gender.
I also thought that “gender-affirming care” involved a willingness to use puberty blockers, and use them soon: in some cases they’ve been prescribed after just the first visit to a doctor or therapist.
It’s worth considering whether at least these two aspects of gender-affirming care should indeed be banned for the time being. No child’s word should be accepted without question by a therapist, especially when irrevocable medical changes can depend on whether that word is accepted uncritically. There is general agreement that gender dysphoria will resolve one way or the other (often the child becomes gay) without dangerous hormonal or surgical treatment, so why the rush??
Further, I agree with the Europeans that the use of long-term puberty blockers should be considered experimental, not just an off-label use, which is how they’re used in America. They should not be prescribed except in clinical trials—something that the Europeans, more cautious than we in this matter—have decided.
Now there may be other aspects of these bills banning gender-affirming care that go beyond this, and to which I’d object. But the two behaviors above—banning “immediate acceptance therapy” and prescribing puberty blockers willy-nilly—are, in my view, worth halting pending further data.
Until we know that puberty blockers are safe for long-term use, and absolutely reversible, they should not be prescribed except in clinical trials, and not to the general public. These are used either at the onset of puberty or before it begins, and a child is in no position to make a decision about its gender at that age. I’m not sure what age should be the cutoff, but surely no younger than 18. We can argue about that after the medical data are in.
And yes, I’m prepared to think that conservatives who propose these bills are doing so not solely out of medical and therapeutic considerations, but to go along with their tribe, perhaps out of a general dislike of transgender people. That is thoughtless and unempathic.
Nevertheless, I might be willing to go along with some aspects of these bans, not on political grounds, but rather on medical grounds and out of concern of the well-being of children and adolescents.
But my ignorance of these 17 bills is profound, so please enlighten me. What kind of “gender-affirming care” do they ban? Do they spell it out clearly?
James C. Ho is a Trump-appointed federal judge on the Fifth Circuit of the U.S. Court of Appeals. That means he’s a conservative judge on the most conservative federal appellate court; further, this story was reported by a conservative website, the Free Beacon. If you want to ignore it because of that, that’s your problem, for what’s important is whether the issues adduced are worth discussing, not who raises them.
The other person mentioned here, who’s adhering to Ho’s decision, is Judge Elizabeth Branch. She’s Ho’s equivalent—and also appointed by Trump—for the Eleventh Circuit, a southern circuit court comprising Alabama, Florida, and Georgia. Last year both Ho and Branch announced they were no longer hiring clerks from Yale Law School:
Ho and Branch, who introduced Ho at the Texas Review event, are 2 of 14 federal judges boycotting Yale Law School over a rash of high-profile free speech scandals, including an incident last March in which hundreds of students disrupted Kristen Waggoner, a religious liberty lawyer who has won several cases at the Supreme Court.
Why I’m presenting this is not because I agree with these Judges, even in the decision I’m mentioning, but to make the point that if a school creates and emphasizes a policy promoting free expression, and prohibits disruption of speech, then unless it penalizes the disruptions, the law is toothless. A policy without sanctions is not a policy at all.
And so, below, you can see Ho’s explanation for his decision:
The letter to which Ho refers below was one I highlighted recently; it was from Stanford Law School (SLS) Dean Jenny Martinez to the SLS community about the disruption that occurred when SLS students effectively deplatformed a visiting conservative judge, Kyle Duncan. You can read Martinez’s letter here. It highlighted Stanford’s commitment to free speech, said that “enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints,” and announced that DEI Dean Tirien Steinbach, who contributed to the disruption in several ways, had been put on leave.
At the time I thought it was a good letter, and though the disruptive students should have been disciplined (as they would be at my university), Martinez didn’t do so because they couldn’t be easily identified. I let that go, but after reading Ho’s remarks, I do think that any student who violates a school’s free-speech policy in this way should be disciplined. At Chicago, I believe, they are first given a warning, and then expelled or suspended if they commit a second offense.
I’ll indent Ho’s words, taken from an address he gave on April 1 to the annual meeting of the Texas Review of Law & Politics
I’m a graduate of Stanford University and the University of Chicago. As we consider recent events, I wonder if my first alma mater has a lot to learn from my second.
The University of Chicago has long been a national leader when it comes to freedom of speech in higher education.
One former President of the University of Chicago put it this way: “Education is not intended to make people comfortable—it’s meant to make them think.”
But law schools today are turning this upside down. At some law schools, education is more about making students comfortable—at the expense of making them think.
. . .Here’s the good news. This problem should be easy to solve. Most universities already have rules in place ensuring freedom of speech and prohibiting disruptions.
The problem is that these rules aren’t enforced. Students disrupt without consequence. Administrators tolerate or even encourage the chaos.
It’s not because most students or faculty support these tactics. When I visit law schools, I’m always told it’s just a small fraction of students who practice intolerance. But the majority tolerates it, because faculty members don’t want to be controversial. And students just want to graduate, get a job, and move on with their lives.
But I want to draw a sharp distinction between students being afraid and faculty being afraid.
Students are just starting their lives. They don’t want to end their careers before they even begin.
We shouldn’t be putting it on the students to police other students. It should be on the grown-ups to lead, to teach, and, where necessary, to punish.
But the grown-ups are scared to do anything. We’re the opposite of the Greatest Generation. We’re leaving our country worse off, not better, for the next generation.
. . . .I go back to my alma mater, the University of Chicago. A few years ago, the law school held an event featuring a professor who favors anti-boycott laws to protect the State of Israel. Before the event, the law school reminded students of its free speech policy.
But one law student thought he found a clever loophole. Rather than disrupt the event himself, he recruited others to campus to disrupt the event.
Well, my law school was not impressed. Chicago suspended the law student for the rest of the year—and told him that he’d have to re-apply for admission if he ever wanted to come back.
And guess what: Chicago hasn’t experienced a disruption ever since.
Well, we have had at least two disruptions since, one is described here, and another forced the speaker to deliver her talk online instead of live. But let’s go on with Judge Ho:
The point is that law schools know what their options are. They know they can suspend or expel students for engaging in disruptive tactics. They know they can issue a negative report on a student’s character and fitness to state bar officials. They know it because schools have done it.
Second, at a minimum, law schools should identify disruptive students, so that future employers will know who they’re hiring.
Schools issue grades and graduation honors to help employers separate wheat from chaff. Likewise, schools should inform employers if they’re at risk of injecting potentially disruptive forces into their organizations.
Without that information, employers won’t know if the person they’re hiring is in one category or another. Now, some employers may be okay with that. But others may not be. No one is required to hire students who aren’t taught to live under the rule of law.
Third, it’s not enough to just promise freedom of speech. The Soviet Constitution promised free speech, too. But it was just words on paper—what our Founders called a “parchment promise.”
Our Founders taught us that it’s not enough to just promise certain rights. You need to establish a structure of government to ensure that your rights will be protected.
And here’s Ho’s beef. I’ve highlighted the money quote:
. . . .These three elements are plainly missing at Stanford Law School. Just look at the ten-page letter that was recently issued by the Dean. I know that letter has been praised by some people for standing up for free speech. I don’t share that view.
I’ll agree that there are some good words in that letter. But they’re just words. How do we know if those words are sincere—and not merely strategic? Because there’s good reason to be suspicious.
Remember, this wasn’t the Dean’s first reaction to recent events. Her first reaction was to defend the administrators as “well intentioned.”
So at best, this is a dramatic change of heart. Should we believe it?
Well, here’s the problem: The words in that letter are not accompanied by concrete actions. Because it imposes zero consequences on anyone. It doesn’t even say whether there will be consequences if there’s a disruption in the future.
Look, I get that no one wants to be vindictive. I believe in redemption and grace. But we’re not talking about good faith mistakes here.
Is it really that close of a call—whether it’s okay to call for someone to be raped? Do these future leaders really not have fair notice that they shouldn’t ridicule a judge’s sex life?
I’m all for second chances. But I’m not a schmuck.
This shouldn’t be difficult to understand. Rules need to be enforced. Violations must have consequences. You don’t need a fancy law degree to understand this. Anyone who’s ever been a parent understands this. Heck, anyone who’s ever been a kid understands this. Kids don’t obey parents who don’t back up their words with consequences.
. . .The real problem in the academy is not disruption—but discrimination. Rampant, blatant discrimination against disfavored viewpoints. Against students, faculty, and anyone else who dares to voice a view that may be mainstream across America—but contrary to the views of cultural elites.
Moreover, let’s just say it: The viewpoint discrimination we most often see in the academy today is discrimination against religious conservatives. Just look at which viewpoints are targeted most frequently at speaker events—and excluded most vigorously from faculty appointments.
Unless we take action to solve the real problem—discrimination, not disruption—all we’re doing is giving speeches.
. . .So what do we do about it? Well, ask yourself this: What do elite law schools do when they conclude that institutions are failing them? Yale recently called for a boycott of the U.S. News and World Report. And numerous schools have followed suit. Well, imagine that every judge who says they’re opposed to discrimination at Yale and Stanford takes the same path. Imagine they decide that, until the discrimination stops, they will no longer hire from those schools in the future. How quickly do we think those schools would stop discriminating then?
So Lisa and I have made a decision. We will not hire any student who chooses to attend Stanford Law School in the future.
And so Ho’s and Branch’s blacklist now include both Yale and Stanford. Is it fair to refuse to hire clerks from either of those law schools? I think this is a toss-up, but tend to come down against Ho and Branch. If a good student, and one without a record of disruption, applies to be a clerk, he or she shouldn’t be refused simply because they went to a woke law school. This is punishing the student for what the school does. (On the other hand, I can see that if this policy was exercised widely, it would give law schools an impetus to quell disruptions.) Further, because SLS and Yale are liberal law schools, a few conservative judges refusing to take any students further punishes the conservative students and does nothing to change school policy.
But although the “not hiring” tactics are likely to be completely ineffectual, I agree with the general message Ho and Branch are conveying: students should not only be educated in First Amendment Principles, but also punished if they violate a school’s own free speech principles. And yes, it would be good if universities and law schools had greater ideological diversity. This is particularly true in law schools, for unless you hear arguments from the conservative side, how are you going to argue effectively before conservative judges in the future?
Finally, schools should punish students who violate free-speech principles by deplatforming or disrupting speeches. One offense is sufficient to call a student in and tell them, “don’t do it again.” If they do do it again, punish them more severely, and put it on their records. I’m all for second chances. But I’m not a schmuck.
Although I’ve always said I’m in favor of some affirmative action in college admissions and hiring (but haven’t figured out exactly it should be implemented), I’ve never been in favor of mandatory DEI (“Diversity, Equity, and Inclusion”) statements as required parts applications for admission to colleges, graduate schools, or especially academic jobs.
It should not be part of a job application to show how you can engage in social engineering. Further, DEI statements constitute compelled speech, similar to the loyalty oaths that California academics used to take, and thus is unconstitutional.
These mandatory statements also change the purpose of a university—normally to teach, to learn, to learn to think, and to do research—into a form of social activism that must adhere to specific tenets of DEI. The statements are judged on how closely they adhere to a school’s construal of Critical Race Theory, and are often read and rated before one’s academic credentials are assessed. If you don’t meet the right “rubric” for your statement, your application can be trashed. Woe unto the applicant who says they “will treat all students equally” or “will adhere to Dr. King’s view that people should be judged by the content of their character [in this case, their academic achievement] and not the color of their skin”. Such candidates are considered unenlightened, and accrue the lowest ratings.
And if you don’t have a philosophy of DEI, a history of past DEI efforts, and a plan about how you can implement DEI in your university, then you stand little chance of getting a job. (There are usually three aspects to a DEI statement.)
Now not all schools require such statements. The University of Chicago, for instance, explicitly forbids them as per our Shils Report (full document here), which mandates that the criteria for academic appointments and promotion must comprise only research, teaching and training (grad students), contributions to the intellectual community, and service (this includes service to the University and your academic field, like giving seminars, editing academic journals, and so on.) The U of C has mandated that DEI statements are not included in this, and it’s forbidden for academic departments to require them for hiring and promoting faculty. I know of no other school that has such a prohibition, although there may be some.
In contrast, many schools not only require DEI statements, which can be and are used in race-based hiring—an attempt to secure equity among faculty—but even designate certain jobs only for candidates of certain ethnicities. Like DEI statements, hiring on the basis of ethnicity is against the law. But as the article below notes, schools know about this illegality but flout it anyway, because nobody ever penalizes them for doing so. Lawsuits against such discrimination are nonexistent for three reasons:
a.) They’re bloody expensive.
b.) You have to have “standing” to sue: to prove that discriminatory hiring based on race injured you. It’s hard to prove that.
c.) As the article below notes, if you sue a school because you were not hired or not considered because, say, you were Asian or white, you become academically radioactive: no liberal school (i.e. nearly all schools) will want to hire such a notorious person.
This is not a conservative point of view but a liberal one, as it is anti-discrimination and anti-compelled speech. The push to get rid of DEI statements is supported by all academic freedom organizations I can think of, including the Foundation for Individual Rights and Expression (FIRE). FIRE notes that while the Constitutional prohibition applies only at public schools and colleges, it should apply more widely than that. As they say:
The First Amendment prohibits public universities from compelling faculty to assent to specific ideological views or to embed those views in academic activities. While private universities are not bound by the First Amendment, they generally make commitments to free speech and academic freedom that similarly preclude enforcement of any political, moral, or ideological dogma. Such colleges and universities educate and employ the overwhelming majority of America’s students and faculty members, and this document is intended to address DEI policies at those institutions.
But one person—Richard Lowery, an associate professor of business and finance at the University of Texas—has filed such a lawsuit against Texas A&M University. In his case, the “injury” consisted of the fact that (although he apparently has no interest in a job at Texas A&M, which isn’t as good as UT in his field), Lowery wouldn’t even be considered for a job because it was advertised as being open only to members of underrepresented minorities. Texas A&M is a public school, and thus violated the law by advertising a job open only to candidates of certain ethnic backgrounds.
Lowery’s gambit is a clever way to get standing, and apparently it’s worked so far (it also allowed other people to join in on a class action suit). Several law faculty at other schools are quoted as saying this is a pretty solid suit with a good chance of winning.
Click below to read:
Here’s the basis of the case as described above (remember, as a state school, Texas A&M must adhere to the First Amendment):
. . . the law may finally be coming for the overt employment discrimination practiced on most campuses today. The form of the destructor may be a test case filed on September 10: Lowery v. Texas A&M University System.
8. The Texas A&M University System, along with nearly every university in the United States, discriminates on account of race and sex when hiring its faculty, by giving discriminatory preferences to female or non-Asian minorities at the expense of white and Asian men. This practice, popularly known as “affirmative action,” has led universities to hire and promote inferior faculty candidates over individuals with better scholarship, better credentials, and better teaching ability.
9. These race and sex preferences are patently illegal under Title VI and Title IX, which prohibit all forms of race and sex discrimination at universities that receive federal funds. But university administrators think they can flout these federal statutes with impunity because no one ever sues them over their discriminatory faculty-hiring practices and the Department of Education looks the other way.
10. These discriminatory, illegal, and anti-meritocratic practices have been egged on by woke ideologues who populate the so-called diversity, equity, and inclusion offices at public and private universities throughout the United States. The existence of these offices is subverting meritocracy and encouraging wholesale violations of civil-rights laws throughout our nation’s university system.
Specifically, the complaint avers that in July 2022, Texas A&M’s “office for diversity” announced a program for hiring professors that was limited to members of “underrepresented groups,” which it defined as “African Americans, Hispanic/Latino Americans, Native Americans, Alaskan Natives, and Native Hawaiians.” In other words, like many DEI initiatives that pervade most university campuses today, white and Asian men need not apply for this program. Texas A&M justified the program with the goal of establishing a faculty whose racial composition attains “parity with that of the State of Texas”—despite the fact that even Grutter recognized that such racial balancing was “patently unconstitutional.”
Part of Texas A&M’s efforts to achieve such racial balancing has also been to establish faculty hiring lines open only to members of “underrepresented groups.” One such hiring line was in the Department of Finance, where the head of the recruiting committee confirmed in writing that the position was indeed “reserved” for non-white, non-Asian candidates.
Richard Lowery is a finance professor at the University of Texas and is a vocal critic of DEI programs. (Disclosure: I know Rich and have written about him in the past, but I am not involved in his case and did not know of it until after it was filed.) There should be no serious question that he would be qualified for a teaching position in the finance department at Texas A&M; indeed, his qualifications easily exceed those of many current Texas A&M finance professors. Yet despite being “able and ready” to apply for the position, Texas A&M’s “reserving” the position for non-white, non-Asian candidates means that he is ineligible for it.
Lowery’s lawsuit sues Texas A&M and various officials for violations of Title VI and Title IX, seeking declaratory and injunctive relief prohibiting the university from discriminating on the basis of race and sex in hiring decisions. It also seeks redress for violations of 42 U.S.C. § 1981(a), which guarantees individuals the same right to make and enforce contracts without regard to race, and for violation of the Equal Protection clause of the Fourteenth Amendment.
The lawsuit also has another twist: it seeks certification as a class action, for the benefit of all white and Asian candidates who have been discriminated against by Texas A&M’s DEI employment initiatives.
Lowery is of course an opponent of DEI initiatives; why else would he put himself through the trouble of this lawsuit?
Given that the job was limited only to certain ethnic groups, it seems palpably unconstitutional, and I suspect Lowery’s suit will win—unless he is found not to have standing. But, to be sure, any Asian and white person who could have or would have applied for the job could in principle claim injury. Whether that’s upheld or dismissed solely on the grounds of standing, it’s only a matter of time before some brave soul brings a lawsuit on civil rights grounds and does have standing; and that person will win. That will bring the whole DEI-statement mishigas crashing down, and that’s to the good.
The article quotes three law professors who say Lowery’s case is strong. They may be conservatives (I don’t know), but they’re also at good schools: UC Berkeley, Cornell, and UC San Diego. I’ll give two of the statements, one from someone on the US Commission on Civil rights.
How does the case shape up legally? Asked for comment, University of California, Berkeley law professor John Yoo says:
This seems like a strong case. The Supreme Court’s diversity rationale for the use of race in university admissions for students is a limited exception to the general rule that the Constitution prohibits government from using skin color in its decisions and policies. Here, Texas A&M is flatly using race in considering the hiring and compensation of faculty. It is flatly unconstitutional and the university should lose in court.
. . . University of San Diego law professor Gail Heriot, who is also a commissioner on the United States Commission on Civil Rights, observes:
For a long time, faculty members and aspiring faculty members who have been discriminated against have been reluctant to sue—mainly out of fear that they will be ostracized. As a result, college and universities have gotten bolder and bolder in the ways they flout the law. But the tide appears to be turning. There will likely be more lawsuits of this type in the near future.”
I’m sure there will be. It’s only a matter of time.
I didn’t really follow the Supreme Court case of New York State Rifle & Pistol Association, Inc. v. Bruen, but the 2022 case was settled in favor of less restrictive gun laws—and by a vote of 6-3 (ruling here), with the dissenters being Breyer, Sotomayor, and Kagan. Here’s the Wikipedia summary that brought me up to speed:
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022), abbreviated NYSRPA v. Bruen and also known as NYSRPA II or Bruen to distinguish it from the 2020 case, is a landmark decision of the United States Supreme Court related to the Second Amendment to the United States Constitution. The case concerned the constitutionality of the 1911 Sullivan Act, a New York State law requiring applicants for an unrestricted license to carry a concealed pistol on their person to show “proper cause”, or a special need distinguishable from the general public, in their application.
In a 6–3 decision, the majority ruled that New York’s law was unconstitutional, and ruled that the ability to carry a pistol in public was a constitutional right under the Second Amendment. The majority ruled that states are allowed to enforce “shall-issue” permitting, where applicants for concealed carry permits must satisfy certain objective criteria, such as passing a background check, but that “may-issue” systems that utilize “arbitrary” evaluations of need made by local authorities are unconstitutional.
Clarence Thomas wrote the majority opinion, which rested a semi-“originalist” decision that the Sullivan Act violated on the Second and Fourteenth Amendments. First, the Amendments:
Second:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Relevant bits of the Fourteenth (section 1):
… No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Thomas interpreted these in two ways. The Second Amendment allows people to keep and bear arms, and the Fourteenth Amendment says that states can’t infringe on the Constitutional right to do so, i.e., it can’t make unreasonably restrictive gun laws. At least that’s what I get from this part of Thomas’s decision in the case.
The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.
Steven Lubet, the Williams Memorial Professor Emeritus and Director Emeritus, Bartlit Center for Trial Advocacy at Northwestern University’s School of Law, has a new article in The Hill about this decision, which he claims is promoting a “homicide pact”. Click to read:
Thomas really does seem gun-crazy; as Lubet notes, he’s been pushing a decision like this for years. Here’s some of the fallout (quotes from Lubet indented):
It looks as though there will be no end to the fallout from Supreme Court Justice Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen holding that gun control regulations are “presumptively” unconstitutional unless they are sufficiently “analogous” to a 19th century law. The Court’s requirement of a close historical comparator has turned out to be almost impossible to satisfy, causing lower courts to invalidate or question otherwise reasonable laws prohibiting the obliteration of guns’ serial numbers and firearm possession by convicted felons or domestic abusers.
Most recently, a judge held that the absence of a “historical tradition of sufficiently analogous regulations” limited New York’s ability to restrict bringing concealed weapons onto others’ private property.
Lubet brings up the issue of mass shootings, often with legally obtained guns, that now seem to happen a couple of times per week:
It did not have to be that way. In 2008, the Supreme Court held that the Second Amendment protects an “individual right” to possess firearms. Two years later, the Court made it clear that the right to “keep and bear arms for the purpose of self-defense” is applicable to the states as well as the federal government.
Those decisions still left the scope of the Second Amendment right to be determined. In other circumstances, even fundamental constitutional rights may be subject to valid limitations when the government can currently demonstrate a sufficiently “compelling interest” to survive “strictscrutiny.”
A similar approach to the Second Amendment would have allowed lower courts to at least consider the value of existing firearms laws in relation to the constraints they impose on gun owners. But even that modest evaluation has been foreclosed by the Supreme Court’s command, as one judge put it, “that a gun regulation’s constitutionality hinge solely on the historical inquiry [as the] only consideration.”
The Court’s embrace of an exclusively historical method of constitutional review represented an ideological triumph for Justice Thomas, who had been pushing for it in a series of dissenting opinions for years.
I’ve always disliked a hard-nosed kind of “originalism” as espoused by Scalia (and now by his right-wing pal Thomas), for times have changed so much since the late 18th century that it’s impossible to tell what those who wrote the Constitution and Bill of Rights would think about issues that didn’t exist then. For example, in 1995 Garry Wills made a convincing case (at least to me) that the Second Amendment was indeed there to allow militias but not private citizens like Lauren Boebert to pack heat in public, much less pack it concealed and without much scrutiny for a license.
Yes, cases have to be interpreted in light of the Constitution, but when cases arise that can’t be judged using those old standards, one has to rely on rationality and on more recent thinking. Because Thomas won’t do that, he has indeed signed onto a “homicide pact.” Lubet:
Thomas has ultimately succeeded at a long game, but his victory comes at a severe cost. Under Bruen’s holding, a gun regulation must be invalidated unless a court can locate “a well-established and representative historical analogue” dating to the 19th century. Reasoning from a silent record is perverse. The absence of an historical counterpart does not mean that a particular firearm limitation would have been considered unconstitutional by the framers, but only that they found it unnecessary, if they thought of it at all.
One judge has already ruled that domestic abusers cannot be prohibited from gun possession because there were no such laws in an age when domestic battery was regarded as an unprosecutable family matter. And high-capacity magazines were unknown, and would have been thought impossible, in the era of muzzle-loading muskets.
There is no logical, sensible or moral reason to confine today’s gun laws to the provisions favored by 19th century property owners, other than a dogmatic commitment to so-called originalism, no matter how much carnage follows. In 1949, Justice Robert Jackson famously cautioned, “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Justice Thomas has at last assembled a majority that now appears bent on turning the Second Amendment into a homicide pact.
I realize, of course, that the brief of the Supreme Court is to see if a recent law follows the Supreme Law—the stipulations of our Constitution and Bill of Rights. What I don’t know is how the Supreme Court should rule when there’s an issue (like abortion) that wasn’t envisioned by the Founders. Usually they make in their decision on some trumped-up Constitutional issue like “right to privacy”. But for me, if the Second Amendment says the right to bear arms is there to allow a “well regulated militia,” then the reason for having guns is therefor all to see. And I know that Lauren Boebert is not a militia.
Up until now, all accredited law schools in America required nearly every entering student to take the Law School Admission Test (LSAT), which, according to Wikipedia, “is designed to assess reading comprehension as well as logical and verbal reasoning proficiency.” In some cases, however, a student can take the Graduate Record Examination General Test (GRE), which covers verbal reasoning, quantitative reason, and writing (an essay). A recent Princeton Review site says this:
The current admission standards for ABA-accredited law schools state that no more than 10% of an entering class may be admitted without LSAT scores , and those students must meet specific academic requirements, be undergraduates at same institution as the law school, and/or be pursuing a dual degree in another discipline. Law schools may apply for a variance from these standards by demonstrating that another test (in this case, the GRE) is a valid predictor of law students’ performance at that institution. The ABA, however, is currently considering changes to the LSAT score admission standard.
And yes, the ABA has changed these standards: they’ve eliminatedthem. Click on the screenshot below to read the Reuters article about the deep-sixing of all mandatorytests:
Here’s the whole article, with the motivation bolded by me:
The arm of the American Bar Association that accredits U.S. law schools on Friday voted to eliminate the longstanding requirement that schools use the Law School Admission Test or other standardized test when admitting students.
But under a last-minute revision, the rule change will not go into effect until the fall of 2025—giving law schools time to plan for new ways to admit students.
The ABA’s Council of the Section of Legal Education and Admissions to the Bar overwhelmingly voted to do away with its testing mandate after years of debate and over the objections of nearly 60 law school deans who warned such a move could harm the goal of diversifying the legal profession.
The organizations that design both the LSAT and the GRE also urged the council on Friday not to drop the rule, warning that it could lead to law schools admitting students who are unlikely to succeed despite incurring debt to attend.
Councilmember Daniel Thies noted that no other professional school accreditors require the use of admissions test and that has not led to a “race to the bottom” to bring in unqualified students. Existing limits on student attrition and a requirement that at least 75% of a school’s graduates pass the bar exam offer further guardrails, he said.
“The goal is to open up innovation—finding other ways that might complement the current admissions processes to move us ahead in legal education on diversity and a host of other considerations,” Thies said.
The ABA standards currently require law schools to use a “valid and reliable test” in admissions decisions. For years, the only standardized test that automatically met that criteria was the LSAT, though the ABA in November 2021 added the GRE as an acceptable alternative.
In other words, law schools are going to a mushier “holistic” standard of evaluation in an effort to increase diversity, which apparently was too low when the GRE or LSAT were required. So much for the claim that diversity and merit (at least as judged by exams) are are absolutely compatible. That is a fiction, but an ideologically comforting fiction.
Now it’s possible that law schools may still require either test for admission, but it’s no longer a mandatory requirement for a law school to be accredited.
I wonder what they’ll replace the tests with? Essays? Assessments of “personality”? Is there any downside to using other standards but keeping the standardized tests as well?
All over the country we see the elimination of standardized tests for admission to colleges, graduate schools, or professional schools. Since it’s the one measure on which everybody competes with everybody else on the same set of questions, I don’t think doing away with such metrics is a good things. Next test circling the drain: the Medical College Admission Test (MCAT).
Elizabeth Holmes is now in court, facing sentencing on four counts of wire fraud for the Theranos startup case. Both prosecution and defense are making long arguments about her sentence, and it has’t yet been pronounced. It will come down within a couple of hours.
Holmes faces up to 20 years in prison, but the prosecution has asked for 15 years and a fine of $800 million. The defense, however, has asked for 18 months, preferably served in home confinement. In such cases the judge usually pronounces a sentence close to what the prosecution recommends. My own prediction was ten years. It will undoubtedly be served in a cushy federal prison in California.
You can watch the livestream by clicking on the screenshot below, but since it’s a federal court, cameras aren’t permitted. What you’ll see is up-to-the-minute news.
According to this New York Times article from two days ago (click on screenshot below), both Yale and Harvard Law Schools have decided to withdraw from the US News & World Report‘s (USNWP’s) ranking of America’s top law schools, a ranking you can see here. As you may know, USNWP ranks all kinds of schools, including universities as a whole, med schools, global universities, all kinds of graduate programs, and even high schools. (Ecology/Evolution grad programs are even rated: we’re #10 though for many years we were #1.)
These ratings are taken quite seriously by students looking for schools, despite the fact that there have been problems with some of the data. (I’m not exactly sure how they’re calculated, though it’s a mixture of student performance before, during, and after their studies, like starting salary, standardized test performance to get in [LSAT], and perhaps scores on the bar exams.) Further, the article says that 20% of all law school rankings come from grades (Yale doesn’t give traditional grades) and test scores.
Click to read, and see if you can figure out why Yale and Harvard did this:
By the way, the top ten law schools, in order from highest to lower, are Yale, Stanford, The University of Chicago, Columbia and Harvard (tie), University of Pennsylvania, New York University, University of Virginia, the University of California at Berkeley, and the University of Michigan at Ann Arbor.
At any rate, both Harvard and Yale Law Schools (note: not Harvard or Yale themselves) are withdrawing from the USNWP ranking. I’m not sure whether that means they won’t be ranked because they won’t provide the necessary data (most of the data, however, is public), or whether USNWR will still rank them based on what it has.
What puzzles me about all this are the reasons the schools give for withdrawing, as they don’t make a lot of sense. But here’s what the article says:
Now both Yale and Harvard law schools have announced that they will no longer cooperate. In two separate letters posted on their websites, the law school deans excoriated U.S. News for using a methodology that they said devalued the efforts of schools like their own to recruit poor and working-class students, provide financial aid based on need and encourage students to go into low-paid public service law after graduation.
“It has become impossible to reconcile our principles and commitments with the methodology and incentives the U.S. News rankings reflect,” John F. Manning, the dean of Harvard Law, said in his statement.
It’s not clear to me why such high rankings will “devalue the efforts” of the schools “to recruit poor and working class students”, “provide financial aid based on need”, or will discourage “students to go into low-paid public service law after graduation.” Presumably a high ranking attracts good students, which means all students who think they can get in, and neither school is poor. Perhaps the fact that the schools publish the starting salary of graduates—$190,000 at Yale for private sector jobs, $70,000 for public-sector ones—means that this differential would attract only students who want a big salary, but they’re going to know this kind of stuff anyway.
It’s widely known, further, that these rankings have flaws.
Many critics of the rankings have said that the data can be easily manipulated, and pointed to the doubts this year over Columbia University’s data.
Over the summer, Columbia announced that it would no longer participate in the rankings of national universities, and said it was reviewing its data — which had resulted in a No. 2 spot — after a math professor had questioned its accuracy. The university ultimately admitted that some of its data, including undergraduate class size and the percentage of faculty with the highest degree in their field, had been inaccurate.
The Dean of Yale’s Law School, Heather Gerken, mentions a different problem not involving accuracy.
Even though Yale Law School has consistently been the top-rated school on the U.S. News list for the last three decades, Ms. Gerken said the rankings had been on her mind as she embarked on her second term as dean.
Asked why she would worry about them when Yale was No. 1, she said: “It’s not about Yale Law School. It’s about legal education and the profession. It’s a moment to step back and think about what we are doing.”
In her letter, Ms. Gerken called the U.S. News rankings a “for-profit” and “commercial” enterprise that is “profoundly flawed.” She said the methodology does not give enough weight to programs like Yale’s “that support public interest careers, champion need-based aid, and welcome working-class students into the profession,” and as a result, skews the rankings of law schools that emphasize that work.
What surprises me about this is that Yale is NUMBER ONE, so if USNWP gave even more weight to public-interest law, they still would be number one! The “working class student” thing still puzzles me, as it implies that there’s some affirmative action for socioeconomic status or ethnicity, but I can’t see how being #1 would discourage such students. Yes, Law School is expensive, but with starting salaries so high, loans can be repaid fairly quickly, and I presume that both Yale and Harvard Law have need-based financial aid.
One suggestions by others is that this has something to do with affirmative action. I’m not at all sure of that, but perhaps it comes from comes from these paragraphs in the NYT:
[Gerken] said that 20 percent of a law school’s overall ranking comes from grades and test scores. “This heavily weighted metric imposes tremendous pressure on schools to overlook promising students, especially those who cannot afford expensive test preparation courses,” she said in her letter. “It also pushes schools to use financial aid to recruit high-scoring students.”
That money, she said, could be diverted to scholarships for low-income students.
. . . There is currently an effort to do away with mandatory testing for admission to law school, but no final decision has been taken. At the same time, dozens of law schools now allow applicants to submit GRE scores in place of LSAT scores. Both are part of an effort to boost admissions for low-income students and students of color.
Finally, the dean of Harvard Law has another explanation: the rankings game force schools to behave in a way that they don’t like, ways designed to boost their standing:
Mr. Manning, of Harvard, said the rankings methodology “can create perverse incentives that influence schools’ decisions in ways that undercut student choice and harm the interests of potential students.”
For one thing, he said, the “debt metric” adopted by U.S. News two years ago might appear to reflect lower debt at graduation because of generous financial aid. But the metric could also mean that a law school admitted “more students who have the resources to avoid borrowing,” he wrote. “And to the extent the debt metric creates an incentive for schools to admit better resourced students who don’t need to borrow, it risks harming those it is trying to help.”
But this decision about financial aid is strange. It implies that Yale is already giving “generous financial aid”, but yet a low “debt metric” would also lead Harvard to admit more rich students. How Harvard, which has vast resources and endowments, balances admitting poor versus rich students seems to me a decision that is made without regarding the USNWP rankings. At any rate, Harvard is already the fourth best law school in America by this ranking. What are they beefing about?
I have a feeling that something is going on here (and clearly Harvard and Yale colluded in their decision) that isn’t clear and is not specified by either school. But I don’t know what it is. Readers are welcome to speculate. One thought that crossed my mind is that these schools know that relaxing their standards might lead to a lower ranking, and if they’ve decided to do that then perhaps they don’t want to be ranked at all.
I’ve always been a fan of and a member of the Freedom from Religion Foundation (FFRF). I am on their Honorary Board of Directors, and in 2011 received their “Emperor Has No Clothes Award”, which as they say is “reserved for public figures who take on the fabled role of the little child in the Hans Christian Andersen fairy tale and ‘tell it like it is’—about religion.” I’ve was very honored with their recognition, and humbled to be added to the many people I admire who have also gotten the gold statue of the naked emperor—a statue made by the same company that makes the Oscars.
Lately, however, the FFRF has crept out of its bailiwick of enforcing separation of church from state, and is, like the ACLU and the SPLC, engaged in matters of social justice. Well, that’s their call, and I wouldn’t beef about it unless I thought they’ve undertaken campaigns that are unwise.
Well, the FFRF has, and has gone to ground on the same issue where the ACLU went astray: transgender issues in sports. I hasten to add again that I think that with almost no exceptions, transgender people should have all the rights, privileges, and moral status as cisgender folks. I’m happy to call them by their chosen sex, treat them as members of their chosen sex, and use their chosen pronouns.
The few exceptions, which I’ve written about in detail, include sports participation (particularly trans women competing against biological women), rape counseling, and inhabiting sex-segregated prisons. There are good reasons for these exceptions, and the reasons all involve fairness to biological women—fairness that can be abrogated by considering transsexual women as fully equivalent to biological women.
Now the FFRF, as shown by its new press release, has joined as amicus in a suit against Indiana public schools, with the plaintiffs arguing that a state law prohibiting transgender girls or women from competing against biological women in public-school sports is unconstitutional, violating Title IX. Title IX prevents schools that receive federal money from discriminating between the sexes in any school activity, including sports. Click to read the FFRF’s press release:
Excerpts from the above:
The Freedom From Religion Foundation has signed on to an amicus brief challenging a new Indiana law that discriminates against transgender school athletes.
The National Women’s Law Center and its law firm partner, Hogan Lovells, have filed a friend-of-the-court brief before the 7th U.S. Circuit Court of Appeals in A.M. v. Indianapolis in support of the plaintiff, a 10-year-old transgender girl who was kicked off her elementary school softball team after a sports ban targeting transgender girls and young women took effect in the summer of 2022. A.M. and her family, represented by the ACLU, won a preliminary district court injunction finding that the anti-trans ban on sports participation likely violates Title IX. The state of Indiana has appealed.
Indiana’s House Enrolled Act 1041, which was briefly in effect in July, forces Indiana public schools to bar any student from participating on a female sports team if the student is deemed to be “male, based on a student’s biological sex at birth in accordance with the student’s genetics and reproductive biology.” As the district court properly recognized, this type of sex discrimination violates both the text and the purpose of Title IX. It also contravenes the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
Note that the law doesn’t prohibit transgender athletes from participating in sport, but prohibits transgender women, born as biological males, from participating on female sports teams. The FFRF brief goes on:
The National Women’s Law Center brief that FFRF has signed on to highlights how inclusive school policies (such as the local Indianapolis policy displaced by an anti-trans statewide ban) are consistent with Title IX and a key part of creating gender equity in education. The inequities girls face in K-12 sports are not due to inclusion of transgender girls and women. The law will impact all women — not just women and girls who are transgender — and will be particularly harmful to Black and brown women and girls.
The Indiana law threatens opportunities for girls and women who seek to play school team sports, the National Women’s Law Center amicus brief emphasizes. “Banning certain students from sports teams, merely because of who they are, does not promote fairness or safety for cisgender girls; instead, exclusionary policies like those required by HEA 1041 only serve to harm transgender students, as well as cisgender women and girls who do not conform to sex stereotypes,” it states. Besides, appellants’ claimed concerns about maintaining the “fairness” and “safety” of girls’ sports rest on harmful and inaccurate sex stereotypes. Athletes come in all shapes, sizes and physiological makeups. These differences may be advantageous or disadvantageous based on their sport.
And the Indiana law creates a discriminatory ban that will harm women and girls who are transgender, as well as intersex and otherwise gender nonconforming, the brief maintains. “Participation in sports generally provides students with a supportive network and social status that can minimize feelings of difference and isolation, a benefit that is especially crucial for transgender student athletes because this can help to foster acceptance and positive peer relationships,” states the brief.
And they bring in race, although I’m not sure exactly why “women and girls of color” will suffer disproportionately, for transsexual women or girls of any color are barred from participating in women’s sports. Even if you take intersectionality into account, the Indiana law causes no disproportional harm that I can see to people of different ethnicities. The relevant FFRF bit:
Plus, women and girls of color will be disproportionately targeted and harmed by the new Indiana law. Exclusion of transgender women and girls has a far-reaching impact and can adversely affect other women and girls, as well. Black and brown girls and women — who are routinely targeted for not conforming to society’s expectations of white femininity — are particularly vulnerable to harm from the types of exclusionary policies the state of Indiana is asking the court to impose. Serena Williams is perhaps the most prominent woman of color to experience this policing but far from the only.
Like the ACLU, the FFRF has made this misstep on two grounds.
First, according to Biden’s new policies, any person who declares themselves to be of the sex different from their birth sex is officially deemed to have transitioned, regardless of whether they have received surgery or medical treatment. This means that if a biological male simply declares that he’s a female, the court must take his word for it and allow him to compete on girls’ or women’s sports teams.
And that brings us to the second issue: fairness to biological women who do sports. There is now sufficient data to show that once puberty has begun, biological males begin developing traits that give them performances superior to those of biological females in most sports: bone density, strength, muscle mass, and so on. And even transsexual women who take hormones that reduce testosterone still retain these traits for at least two to three years—and perhaps permanently. For data summarizing these differences, see here and here, and, as the NYT wrote in an article on the issue:
But peer reviewed studies show that even after testosterone suppression, top trans women retain a substantial edge when racing against top biological women. . .
. . .“Athletic performance depends on a lot of factors: access to coaches and nutritionists and technical skill,” Mr. Mosier said. “We are making broad generalizations about men being bigger, stronger, faster.”
Most scientists, however, view performance differences between elite male and female athletes as near immutable. The Israeli physicist Ira S. Hammerman in 2010 examined 82 events across six sports and found women’s world record times were 10 percent slower than those of men’s records.
“Activists conflate sex and gender in a way that is really confusing,” noted Dr. Carole Hooven, lecturer and co-director of undergraduate studies in human evolutionary biology at Harvard University. She wrote the book “T: The Story of Testosterone.” “There is a large performance gap between healthy normal populations of males and females, and that is driven by testosterone.”
The sprinter Allyson Felix won the most world championship medals in history. Her lifetime best in the 400 meters was 49.26 seconds; in 2018, 275 high school boys ran faster.
Now these differences begin with puberty, and, as the NYT say, are viewed as “near immutable” (some sports, like shooting, however, haven’t been tested, and may not show a difference). One might make a case that before puberty, biological men can compete against women, so maybe the ten-year-old trassexual girl kicked off the (presumably girls’) softball team has a case. But the Indiana law applies to all public schools serving children and adolescents up to age 18, and the issue of unfairness to biological women begins when a biological male starts puberty. One law cannot fit everyone nor be fair to everyone. (See all my posts on this issue here.)
This has been recognized now by several sports organizations, including the Olympics, which “used to require all women to have testosterone levels under 10 nanomoles per liter and transfeminine people to be on testosterone-supressing [sic] medication for at least a year.” However, the Olympics have now rescinded that rule, and has basically bailed, leaving the guidelines for transsexual or intersexual athletes up to each sport. It’s a mess.
I’v proposed several solutions to this issue, all of which seem to allow both men and women to compete in sports without violating Title IX (one is an “other” category for transsexual athletes, intersexual athletes, and so on, while another is allowing both transsexual men and transsexual women to compete against biological men in an “open” category). These avoid the issue of forcing biological women to compete against biological men who have assumed the gender of women.
The issue is complex, and not nearly as simple as the FFRF, ACLU, and other trans advocates make out. It is at once philosophical, moral, and above all biological. To say that “trans women are women” doesn’t hold true in the case of sports performance.
Now some people say this is a trivial issue. Why not let trans women compete on women’s teams? After all, there aren’t many transsexual women athletes. But the rate of sex transitioning has increased sharply in the last 12 years for both males and females aged 12-17, and the issue will not remain “trivial” for long. Further, even a single transsexual woman who wins a competition in women’s sports based on biological advantage gained at puberty creates a lot of unfairness for women (who generally keep silent lest they be called “transphobic”) while advantaging one person. To some extent that tilts the playing field that Title IX tried to level.
I’m not sure why organizations like the ACLU and FFRF are leaving their traditional bailiwicks to get involved in women’s sports, but I wouldn’t mind so much if the stands they took were sensible ones—at the very least based on what we know about the science of sex differences. But they aren’t: these new forays into sports reflect a progressive ideology that sounds good but creates more problems than it solves. Fairness demands more data and, at present, the greatest care in dealing with the issue of allowing biological men who transition to compete against biological women. We already know enough, though, to declare without reservation that medically unmodified biological men who present as transsexual women should not be allowed to compete in women’s sports. And we know enough to hold off on lawsuits forcing biological women to compete against medically treated transsexual women until we have actual data showing that there is no athletic advantage accruing to the latter group during puberty.
Amici are gravely concerned about the harm H.E.A. 1041 will cause to many women and girls by banning all transgender women and girls from playing on school sports teams consistent with their gender identity. H.E.A. 1041 rests on fundamentally inaccurate and harmful stereotypes regarding athleticism, biology, and gender, which particularly harm women and girls who are transgender or intersex4 and Black and brown girls, who are also likely to be targeted because of racial and gender stereotypes that they are less feminine than white girls. These stereotypes frequently result in girls being told outright that they are not, in fact, girls. Such gender policing has been used to scrutinize, demean, and exclude transgender and cisgender women athletes, including those who do not conform to sex stereotypes regarding “femininity.”
. . . Appellants wrongly suggest that H.E.A. 1041’s mandated discrimination against transgender women and girls is necessary to ensure equivalent athletic opportunities for cisgender women and girls under Title IX. In fact, enforcing laws like H.E.A. 1041, that discriminate against women and girls who are transgender and others perceived as not conforming to sex stereotypes, is itself a violation of Title IX. As the U.S. Supreme Court confirmed in the Title VII case, Bostock v. Clayton County, a policy that discriminates on the basis of transgender status necessarily discriminates on the basis of sex.
Appellants rely on inaccurate sex stereotypes regarding supposed categorical physiological differences between cisgender and transgender women and girls to argue H.E.A. 1041 is necessary to protect athletic opportunities for cisgender girls. See Appellants’ Br. 2, 44-46. This narrative is false. Appellants cannot point to any evidence that allowing transgender girls to compete will curtail athletic opportunities for cisgender athletes. To the contrary, research indicates that in states where women and girls who are transgender are included in sports, participation for all women and girls remains steady or even increases..
. . . Transgender athletes likewise have a range of athletic skills, and are far from uniform in their bodies’ sizes or shapes. The assumption that transgender girls and women have categorical athletic advantages over cisgender girls and women is inaccurate and based on stereotypical gender norms around the types of bodies that are more athletic and the qualities connected with athleticism.
Here’s the bit on race and, apparently, intersectionality:
Exclusion of transgender women and girls has a far-reaching impact and can adversely affect other women and girls as well. Black and brown girls and women—routinely targeted for not conforming to society’s expectations of white femininity—are particularly vulnerable to harm from the types of exclusionary policies Appellants ask the Court to impose. When Black and brown women’s bodies fall outside of traditional notions of white femininity, they are subject to policing, discrimination, and harassment.
In the end, this kind of activism will completely efface the reason why men’s and women’s sports are separate.
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Bonus: Dr. Phil talks about transsexual athletes with Carole Hooven, whom we met yesterday. And look at the screenshot at 1:14!
Dr. Phil used my website (but of course I got the figure from someone else):
