06 November 2019

Affirmative-Action Jurisprudence: Court Greenlights Naked Discrimination Against Asians


Stephen Kershnar
Harvard Admissions: Asians are Dull
Dunkirk-Fredonia Observer
November 4, 2019

In a recent case, Students for Fair Admissions, Inc. v. Harvard University (2019), a federal court judge, Allison Burroughs, ruled that the Constitution and 1964 Civil Rights Act permit Harvard to discriminate against Asians.  

Burroughs followed Supreme Court precedent in holding that a policy of an institution that receives federal dollars and uses race or ethnicity as a factor must receive strict scrutiny. This means that the state has a compelling interest in the institution’s goal and its means is narrowly tailored to achieve that goal.

The judge found that the state had a compelling state interest in Harvard’s goals. She listed Harvard’s incoherent soup of goals. The soup includes preparing students to be leaders in a diverse society, exposing them to people from different races, backgrounds, and life experiences, teaching them to engage with people different from themselves, expanding the curriculum, and promoting the faculty’s research interests. On a side note, none of this has been shown to increase academic performance when compared to purely meritocratic admissions.   

Burroughs further found that the university admission’s system was narrowly tailored to accomplish these goals. In particular, she found that race was used as part of an individualized and holistic review of each applicant’s file. This was done to ensure that serious consideration was given to the many ways an applicant might contribute to a diverse educational environment. This apparently explains why black and Hispanic students at Harvard were admitted with SATs roughly 120 and 110 points lower than Asians and 60 points and 80 points lower than whites.

The discrimination against Asian occurred in part because Asian applicants were judged to be less attractive as people (lower personal ratings) than members of other races. This despite the fact that the people who interviewed them didn’t see them as having less attractive personalities and the fact that they were more likely to engage in extracurricular activities. Still, admissions officers who never met them viewed them as having less attractive personalities. Harvard further argued that without this considering race, there would be fewer black students and, so, they would feel alienated.  

What is interesting is not Harvard’s paper thin goals or the dubious Asians-are-less-attractive-people way in which they were discriminated against. Rather, it is the degree to which leftist ideology controls the way in which Harvard argued the case and the judge decided it.

Burroughs stated that it was “somewhat axiomatic” that racial diversity is an important aspect of education. She argued that “a heterogeneous student body promotes a more robust academic environment with greater depth and breadth of learning, encourages learning outside of the classroom, and creates a richer sense of community.” Side note: This suggests that it is not axiomatic.

None of this is supported by the academic literature, especially when compared to an admissions process that admits students purely on the basis of academic excellence. Nearly 8,000 applicants to Harvard had perfect GPAs, 3,400 had perfect math SATs, and 2,700 had perfect verbal SATs. There is no evidence that the student body would learn or accomplish less if it were chosen purely for academic excellence. On a side note, Burroughs and I attended the same law school a few years apart. It had almost none of the diversity she now thinks is axiomatic and we both received an excellent education.  

In addition, diversity is what you want it to be. Children of ICE officers, correctional officers, evangelical Christians, ex-felons, former drug addicts, loggers, Marines, and porn actresses would add diversity. There is no way in theory or practice to decide whether they add more or less diversity than do black and Hispanic students. The interest in demographic diversity conflicts with the interest in diversity of ideas and experiences. In a campus in which the students and faculty already skew far left, adding more blacks and Hispanics further skews it to the left and, thus, reduces diversity of ideas. Favoring minorities over ex-felons, Marines, and porn actresses lessens experiential diversity. 

Also interesting is the degree to which Harvard chooses students for reasons other than academic excellence. Roughly a third of its students are athletes, legacies, dean’s list applicants (often children of big donors), and children of faculty and staff. These groups are accepted at high rates. For whites, the acceptance rate is as follows: recruited athletes (88%), dean’s list (48%), and children of faculty and staff (43%). Some of this is unsurprising. For example, big-time donors benefit the whole campus.  

Further interesting is the fact that some of Harvard competitors don’t try to compete by doing something different. Second tier Ivy League and their elite cousins (Brown, Columbia, Cornell, Dartmouth, Duke, and Rice) compete against the first tier (Harvard, Princeton, Stanford, and Yale) for students, faculty, and alumni dollars. One way they might do so is by distinguishing themselves by doing something different. For example, they might focus solely on academic or research prowess and reject any anti-meritocratic factors (for example, athletics, diversity, and legacy). So deeply embedded is the left’s commitment to demographic diversity that none distinguishes itself by taking this obvious step.   

There is no right answer as to whether a school should favor academic prowess over excellence in polo, sailing, and squash. Universities have multiple goals. These include attracting the best students, being a top flight research center, increasing endowment, keeping the federal money spigot open, and promoting equal opportunity. Different admissions criteria will affect these goals differently. There is no right answer, other than the preference of a university’s owners, as to which of these goals a university should have and how to prioritize them.

Making things murkier is the fact that it is unclear who owns Ivy League schools. The trustees are elected, college officials are mere employees, and it doesn’t have private owners similar to those found in a partnership or a publicly traded corporation. In short, the issue of admissions defies a principled solution. Even in this context, though, Harvard’s anti-Asian discrimination is distasteful.

Criminality and Corruption in the Federal Government


Stephen Kershnar
Criminality, Corruption, and Trust
Dunkirk-Fredonia Observer
October 21, 2019

Top government officials are increasingly above the law. The elite power structure (academia, media, political parties, and social media giants) pretends not to notice. At issue is whether this is a threat to the country or just the same old same old.

Exhibit A is the FBI and DOJ’s Russia Hoax. Leading FBI officials repeatedly and fraudulently applied to a FISA court to get secret warrants. The FBI’s internal documents made it clear that its leaders knew that the basis for the warrants (Steele dossier) was rife with falsities and unverified. Disgraced FBI head James Comey oversaw some of this fraud on the court, illegally leaked documents, likely lied repeatedly to Congress (he and his lieutenant - Andrew McCabe – contradicted each other), and tanked the prosecution of Hillary Clinton. Comey did so despite knowing that Clinton and her associates openly defied subpoenas, destroyed evidence, and intentionally mishandled top secret documents. Federal prosecutors recommended that Comey’s lieutenant, Andrew McCabe, be indicted for lying to investigators. No adult thinks Clinton, Comey, McCabe, etc. didn’t break the law.

McCabe and the disgraced Deputy Attorney General Rod Rosenstein fought over whether Rosenstein would wear a wire when meeting with Donald Trump and pursue a 25th Amendment plan to remove him. McCabe had a massive conflict of interest when the Clintons’ money man supported his wife’s run for office. Other officials also engaged in FISA abuse, illegally leaked documents, lied under oath, obstructed justice, and spied on the Trump administration. To date, a number of leading FBI and DOJ officials have been demoted, fired, or resigned in disgrace over the Russia Hoax and related spying. None of these criminals has been prosecuted.

Exhibit B involves the Obama Administration. The Russia Hoax began during the sleazy Obama presidency. The IRS admitted to illegally targeting Tea Party groups. The IRS official in the middle of it, Lois Lerner, pled the Fifth. She was held in contempt of Congress. Obama Attorney General Eric Holder was also held in contempt of Congress. He refused to hand over documents relating the Fast and Furious gun running scandal. The DOJ refused to prosecute Lerner and Holder. Holder has a history of sleaziness. He oversaw Bill Clinton’s pardon scandal when pardons were doled out to a spouse of a big donor to the Clinton Library (Marc Rich), Bill’s brother, and one of the people at the center of Clintons’ dirty Whitewater deal (Susan McDougal).

Fun fact: Comey was tasked with determining whether the Rich pardon was illegal. He found it wasn’t. Again, none of these criminals have been prosecuted. Holder successor, Attorney General Loretta Lynch, yet another sleazebag, had to distance herself from the Clinton email investigation because of dubious behavior.

Exhibit C. Leading intelligence officials blatantly lied to Congress. This is a felony and one for which private citizens have been recently charged. The director of national intelligence, James Clapper, lied to Congress about the NSA’s electronic searching of Americans’ emails, video clips, and pictures without a warrant. The CIA’s John Brennan lied to Congress about searching computers used by the Senate’s intelligence committee’s staffers. Again, the criminals skated free. Obama’s government even searched the telephone records of reporters and editors for The Associated press and Fox News.

While not criminal, other forms of dishonesty and corruption abound. The media regularly trumpeted fake news. Examples include Joe Biden and John Kerry’s sons (lavish deals prematurely judged to be kosher), Covington Catholic High (Catholic school boys falsely accused of having bullied a Native American veteran), Ferguson police shooting (“Hands up, don’t shoot” never happened), Brett Kavanaugh (Christine Blasey Ford’s story fell apart), Russia Hoax, and the Trayvon Martin case (main witness appears to be a fraud). Courts repeatedly block Trump administration’s attempts to rein in the flood of illegal immigration with barely a fig leaf of legality. Campuses look the other way when Antifa and other thugs shut down conservative speakers. Social media giants such as Facebook, Google, and Twitter openly censor the right.

At issue is whether this is a threat to the nation. On the one hand, such widespread criminality in government’s highest reaches threatens to undermine the people’s trust in the government. In addition, corruption in academia, courts, federal intelligence and police agencies, and social media giants encourages further corruption. The criminality, corruption, and lack of trust likely further polarizes the American people. Consider whether FOX and MSNBC viewers will be able to engage in a civil discussion of politics at Thanksgiving. Donald Trump’s voters and Joe Biden’s or Elizabeth Warren’s voters will vie for control of the country with one side, and perhaps both, being disgusted with their country.         

On the other hand, the loss of trust in the government and media has a silver lining. Congress and the last few presidencies are replete with silly mandarins (consider, for example, Bushes, Clintons, John Kerry, John McCain, Obamas, Robert Mueller, Nancy Pelosi, and Mitt Romney). The less they control American lives the better. If the criminality and corruption gins up skepticism about them, all the better. One can’t help but look at the recent presidents’ performance (for example, exploding debt, illegal alien invasion, Obamacare, and housing-fueled economic crash) and wars (for example, Afghanistan, Libya, Iraq, and Serbia) without realizing that Americans’ leaders performed poorly. If diminishing trust comes about via corruption and criminality, rather than poor performance, perhaps this is the way to go.

The Obama administration weaponized government agencies (CIA, DOJ, FBI, IRS, and NSA), but this probably will be reversed. The corruption found in cities such as Chicago and New York City and states such as Illinois and New York is nowhere near what it used to be. The same will likely be true for the federal government.

In the end, I suspect less trust in government is a good thing. Criminality and corruption will be corrected and the polarization of politics will give voters more of a real choice. Still, this is just a guess.

09 October 2019

The Right-to-Die Movement


Stephen Kershnar
Physician-Assisted Suicide: Who Owns You?
Dunkirk-Fredonia Observer
October 8, 2019

The right-to-die movement argues that terminally ill people have a right to die via physician-assisted suicide, refusing life-saving medical treatment, or voluntary euthanasia. Their argument is sound. There is a moral right to die in these ways and there should be a legal right to it as well.  

Physician-assisted suicide occurs when a physician provides a patient with the knowledge or means (drugs) to commit suicide. Physician-assisted suicide is legal in nine states (California, Colorado, Hawaii, Maine, Montana, New Jersey, Oregon, Vermont, and Washington) and in part or all of some advanced countries (Australia, Belgium, Canada, Luxembourg, Netherlands, Switzerland, and United States). Some of the states with perennially loathsome governments criminalize it: Connecticut, Illinois, and New York.

In a pair of cases, Washington v. Glucksberg (1997) and Vacco v. Quill (1997), the Supreme Court held that there was no constitutional right to physician-assisted suicide. In an earlier case, Cruzan v. Director, Missouri Department of Health (1990), the Supreme Court recognized a constitutional right to refuse life-saving treatment and tried to distinguish this right from a right to physician-assisted suicide.

Voluntary euthanasia occurs when a person consents to have another kill him (for example, a physician). It differs from physician-assisted suicide only in terms of who acts last to bring about the patient’s death. There is no moral difference between physician-assisted suicide and voluntary euthanasia as nothing rests on who acts last. In both cases, the physician and patient act with the same goal, use the same means, and bring about the same result.

Physician-assisted suicide has safeguards. The patient must have a terminal illness, be competent, notified of an alternative to suicide (palliative care), and repeatedly authorize the drugs. One study in Oregon found that the most common reasons given for seeking physician-assisted suicide are the loss of ability to participate in activities that made life enjoyable, loss of autonomy, and loss of dignity. In a Washington study, the majority had terminal cancer or a neurodegenerative disease (consider, for example, ALS and Huntington’s disease).

The argument for physician-assisted suicide is straightforward. A person owns himself. That is, he has a fundamental right to control his body. If a person owns himself, then he may shape his life as he sees fit. If he may shape his life as he sees fit, then he may end his life. This is especially true when he has a terminal illness that would otherwise make his future degraded, miserable, and short.

If a person has a moral right to end his life, then he may get others’ help in doing so. Thus, there is a moral right to physician-assisted suicide. In helping a person end his life, the physician does wrong the patient, himself, or a third party. In general, the state should allow people to exercise their moral rights except when doing so prevents catastrophic loss. Hence, there should be a legal right to physician-assisted suicide.

Self-ownership explains why the state grants people other legal rights. Consider rights to think and say what you want (for example, free speech and religion), determine your relationships with others (for example, sex, dating, and marriage), and be free of interference (for example, battery, unreasonable search and seizure, and trespass). It also explains fundamental legal rights in the medical context such as rights to abortion, contraception, and refusal of medical treatment. 

Legislators opposed to a legal right against physician-assisted suicide argue that there is good reason to criminalize it. First, they argue, the practice would endanger vulnerable people, particularly the disabled and mentally ill. For example, they note, some of the degraded-and-terminally-ill people who want to die are clinically depressed.

This reason is unconvincing. There are procedures to lessen this risk and the burden is on those who want to block a fundamental moral right to show that the procedures aren’t working. Even if they could show this, and the evidence doesn’t support them, free societies find ways to protect incompetents that are less restrictive than trampling on the rights of competent adults.

Second, opponents argue that criminalizing the practice prevents people from being pressured into suicide. Such pressure might come from loved ones who struggle with the crushing financial and psychological burdens of supporting someone who is dying in an expensive, painful, and slow manner.

This argument is paternalistic. It tells dying people that they are too much like children to decide what is and is not a good reason to die. Dying people are not children. They can decide for themselves whether being a burden is a good reason for dying, especially in the context of an otherwise degraded, miserable, and short future. Trampling on the fundamental rights of competent adults hardly seems a permissible way to prevent undue pressure in some families. 

Third, opponents argue, allowing such a practice will eventually lead to legalizing euthanasia, perhaps even involuntary euthanasia. Others argue that it might lead to legalizing suicide by people who do not have a terminal illness.

The first slippery-slope argument is neither conceptually nor empirically justified. Conceptually, there is a big difference between letting someone die who consents to it (via physician-assisted suicide) and killing someone who doesn’t consent to it (via involuntary euthanasia). Empirically, I cannot find any evidence of a slide into involuntary killing in states and countries that allow physician-assisted suicide. In addition, as noted above, the distinction between physician-assisted suicide and voluntary euthanasia is insignificant.

The slippery-slope claim that the self-ownership argument for permitting this medical practice also justifies permitting competent individuals without a terminal illness to commit suicide is correct. A person is not owned by his church, country, family, or government. Rather, he owns himself. Free countries permit people to shape their own lives, even if they do so poorly. As an empirical matter, the state will not recognize this additional right. Sadly. Americans just don’t love liberty that much.  

In summary, the right-to-die movement is correct. Terminally ill people should have a legal right to die.