It’s CRT v. the Constitution — and Law Schools Are Picking Sides

[Kamaji]

It’s CRT v. the Constitution — and Law Schools Are Picking Sides

Goldwater Institute
Jul 28, 2023

The following column is by The Goldwater Institute's Van Sittert Center for Constitutional Advocacy Fellow Corbin Witt.

The U.S. Supreme Court just ruled on one of the most monumental issues facing this country: the legality of race-based preferential treatment in college admissions. But even as the court attempts to settle the debate over affirmative action, a broader battle is raging within American higher education between those favoring race-based legal standards and those committed to constitutional equality under the law.

Nowhere is this battle more apparent—or more significant—than within the training grounds of America’s next generation of lawyers and legal scholars. And nowhere is the contrast clearer than in the juxtaposition between two emerging camps of law schools: those aligned with the Constitution, and those aligned against it.

The purpose of a law school is, or at the very least ought to be, to prepare students to practice law. Unfortunately, many of America’s elite law schools seem to be forgetting that mission in favor of prioritizing an ideology undermines not only the Constitution, but most basic principles of liberal democracies. This ideology, known more widely as Critical Race Theory (CRT), is now promoted in even the most elite circles of academia, including the halls of Yale and Harvard, which have hosted annual conferences supporting CRT for years.

What does CRT teach? In the words of one of the theory’s founders:

Unlike traditional civil rights, which embraces incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.

While it’s true that asking questions is how ideas get refined, CRT does not merely question rationalism and neutral law to refine them; it seeks to undermine and replace them. Yet schools like Columbia, Harvard, and Yale appear hell-bent on weaving CRT into their teaching and establishing research centers devoted to its principles. Given CRT’s radical nature, one might expect it to reside at these institutions at most as an optional elective, or a footnote in a class on legal theories. Instead, campus administrators are welcoming this toxic dogma with open arms—and bestowing upon it increasing institutional prestige.

*  *  *

Source:  https://townhall.com/columnists/townhallcomstaff/2023/07/28/its-crt-v-the-constitution-and-law-schools-are-picking-sides-n2626302

[Maj. Bill Martin]

Here's what the American Bar Association says about CRT, which is extraordinarily important since the CRT largely works by establishing different rules under the law.

"So, exactly what is CRT, why is it under attack, and what does it mean for the civil rights lawyer?  CRT is not a diversity and inclusion “training” but a practice of interrogating the role of race and racism in society that emerged in the legal academy and spread to other fields of scholarship. Crenshaw—who coined the term “CRT”—notes that CRT is not a noun, but a verb. It cannot be confined to a static and narrow definition but is considered to be an evolving and malleable practice."

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-theory/

So when some progressive tries to blast a conservative because "you can't even define what CRT is", that's because the definition is intended to be malleable.  There are speeches out there by CRT scholars that basically say that white people trying to attach clear definitions to CRT -- so that we can actually have a debate about it -- is itself an example of oppression.

I think the quick and dirty definition that works the best in terms of actually understanding it, is that CRT is basically just a belief in structural racism, plus using the power of government to mandate equate outcomes to fix it.  But when arguing with a lefty, it's always better to ask them to define it.  Which they are almost universally reluctant to do.

[Maj. Bill Martin]

It’s CRT v. the Constitution — and Law Schools Are Picking Sides

Goldwater Institute
Jul 28, 2023

The following column is by The Goldwater Institute's Van Sittert Center for Constitutional Advocacy Fellow Corbin Witt.

The U.S. Supreme Court just ruled on one of the most monumental issues facing this country: the legality of race-based preferential treatment in college admissions. But even as the court attempts to settle the debate over affirmative action, a broader battle is raging within American higher education between those favoring race-based legal standards and those committed to constitutional equality under the law.

Nowhere is this battle more apparent—or more significant—than within the training grounds of America’s next generation of lawyers and legal scholars. And nowhere is the contrast clearer than in the juxtaposition between two emerging camps of law schools: those aligned with the Constitution, and those aligned against it.

The purpose of a law school is, or at the very least ought to be, to prepare students to practice law. Unfortunately, many of America’s elite law schools seem to be forgetting that mission in favor of prioritizing an ideology undermines not only the Constitution, but most basic principles of liberal democracies. This ideology, known more widely as Critical Race Theory (CRT), is now promoted in even the most elite circles of academia, including the halls of Yale and Harvard, which have hosted annual conferences supporting CRT for years.

What does CRT teach? In the words of one of the theory’s founders:

While it’s true that asking questions is how ideas get refined, CRT does not merely question rationalism and neutral law to refine them; it seeks to undermine and replace them. Yet schools like Columbia, Harvard, and Yale appear hell-bent on weaving CRT into their teaching and establishing research centers devoted to its principles. Given CRT’s radical nature, one might expect it to reside at these institutions at most as an optional elective, or a footnote in a class on legal theories. Instead, campus administrators are welcoming this toxic dogma with open arms—and bestowing upon it increasing institutional prestige.

*  *  *

Source:  https://townhall.com/columnists/townhallcomstaff/2023/07/28/its-crt-v-the-constitution-and-law-schools-are-picking-sides-n2626302

 

Part of the CRT scam is that it requires all sorts of administrators and experts -- often people with no useful skills/knowledge/education outside racial grievance-mongering -- to make the myriad of tiny decisions necessary to push society towards (in theory..._) equal outcomes.  It's a fantastic example of government by the whims of men (or usually women, in this instance) rather than by objective law.

[Kamaji]

Here's what the American Bar Association says about CRT, which is extraordinarily important since the CRT largely works by establishing different rules under the law.

So when some progressive tries to blast a conservative because "you can't even define what CRT is", that's because the definition is intended to be malleable.  There are speeches out there by CRT scholars that basically say that white people trying to attach clear definitions to CRT -- so that we can actually have a debate about it -- is itself an example of oppression.

I think the quick and dirty definition that works the best in terms of actually understanding it, is that CRT is basically just a belief in structural racism, plus using the power of government to mandate equate outcomes to fix it.  But when arguing with a lefty, it's always better to ask them to define it.  Which they are almost universally reluctant to do.

[mountaineer]

Columbia Law School Said It Would Require Applicants To Submit ‘Video Statements’ In Wake Of Affirmative Action Ban. Then it Backtracked.
Aaron Sibarium   
August 1, 2023

Columbia Law School said on its website that it would require all applicants to submit a 90-second "video statement" in the wake of the Supreme Court’s ban on race-based college admissions.

"All applicants will be required to submit a short video, no longer than 90 seconds, addressing a question chosen at random," the school’s admissions page said Monday morning. "The video statement will allow applicants to provide the Admissions Committee with additional insight into their personal strengths."

Critics slammed the move as a thinly veiled attempt to defy the Supreme Court’s ruling and practice affirmative action by other means, using appearance as a proxy for race. ...

Reached for comment by the Washington Free Beacon, however, a spokesman for the law school said it had all been a misunderstanding and, by 6:00 PM Monday evening, Columbia had scrubbed the language from its website. ...

"The timing is so suspect, I have to wonder, are they that dumb?" said a current Columbia Law student, before the requirement was taken down. "They’re not even trying to hide it." ...

Free Beacon

[Kamaji]

Columbia Law School Said It Would Require Applicants To Submit ‘Video Statements’ In Wake Of Affirmative Action Ban. Then it Backtracked.
Aaron Sibarium   
August 1, 2023Free Beacon

That was a trial balloon to gauge public and private response.  They'll find some other way of insinuating their racism into the process.

[mountaineer]

That was a trial balloon to gauge public and private response.  They'll find some other way of insinuating their racism into the process.

Certainly.

[Maj. Bill Martin]

That was a trial balloon to gauge public and private response.  They'll find some other way of insinuating their racism into the process.

The problem they'll have is that there is an entire very-well developed body of caselaw for ferreting out attempted discrimination.  That includes things like changing job definitions or requirements, testing, an subjective interview process, etc..  Obviously, businesses that wanted to discriminate against minorities tried all those tricks to get away with it.  And sometimes, the business wasn't trying to discriminate but its practices led others to be suspicious.

So for example, let's say Harvard does away with all the diversity language, but one racial group repeatedly scores higher in subjective interviews/essay evaluations, and ends up having an elevated admission rate.  And obviously, it's because those doing the subjective interviews/evaluations are racially biased. Well, there are tons of cases out there showing exactly how such practices can be attacked successfully as simply a subterfuge for unlawful discrimination.  So sure, Harvard will try it.  But that doesn't mean they'll get away with it forever.

[Kamaji]

The problem they'll have is that there is an entire very-well developed body of caselaw for ferreting out attempted discrimination.  That includes things like changing job definitions or requirements, testing, an subjective interview process, etc..  Obviously, businesses that wanted to discriminate against minorities tried all those tricks to get away with it.  And sometimes, the business wasn't trying to discriminate but its practices led others to be suspicious.

So for example, let's say Harvard does away with all the diversity language, but one racial group repeatedly scores higher in subjective interviews/essay evaluations, and ends up having an elevated admission rate.  And obviously, it's because those doing the subjective interviews/evaluations are racially biased. Well, there are tons of cases out there showing exactly how such practices can be attacked successfully as simply a subterfuge for unlawful discrimination.  So sure, Harvard will try it.  But that doesn't mean they'll get away with it forever.

Disparate impact analysis.

[Maj. Bill Martin]

Disparate impact analysis.

That's one way to do it, but disparate impact cases don't address intent.  You're liable even if you didn't have discriminatory intent, which means the proof of a statistical imbalance has to be pretty ironclad.  The problem is going to be that in a lot of the those schools, the bias is going to be against groups that normally excel -- essentially devaluing merit in favor of diversity.  And the statistical makeup of the student body may end up looking more "balanced" which will make it very difficult to prove disparate impact.  You can still do it, but it will be tough given that Asians (for example) are still likely to be represented at least in proportion with their numbers in society.

However, in disparate treatment cases, you can often use similar statistical evidence to prove intent without the rigid statistical thresholds of disparate impact.  So, you take some of the public statements made by some of these Administrators, add in some remarks or other circumstantial evidence of intent, and just argue a straight disparate treatment case, with the stats being additional evidence used to show circumstantial evidence of intent in the overall evaluation process. 

I saw a lot more "disparate treatment plus statistics" cases than I did true disparate impact cases just because the legal thresholds for the stats are so high with disparate impact.

[Kamaji]

That's one way to do it, but disparate impact cases don't address intent.  You're liable even if you didn't have discriminatory intent, which means the statistical proof has to be pretty ironclad.  They're pretty hard to prove.  However, you can often use similar evidence, add in some remarks or other circumstantial evidence of intent, and just argue a straight disparate treatment case, with the stats being used to show circumstantial evidence of intent.  I saw a lot more of those than I did true disparate impact cases.

Very true, but it is disparate impact analysis that is used to determine whether there might be a "there" there - in other words, it looks for patterns and distributions that could plausibly support a finding of discrimination, but does not, by itself, address the key question of intent.

Unfortunately, those niceties have been lost or glossed over in most discrimination litigation, and the mere showing of a disparate effect by race (or other protected category) is now considered enough.

[Maj. Bill Martin]

Very true, but it is disparate impact analysis that is used to determine whether there might be a "there" there - in other words, it looks for patterns and distributions that could plausibly support a finding of discrimination, but does not, by itself, address the key question of intent.

Unfortunately, those niceties have been lost or glossed over in most discrimination litigation, and the mere showing of a disparate effect by race (or other protected category) is now considered enough.

Well, you can absolutely win a case based on disparate impact alone without any finding of intent at all.  It's not an element that needs to be proven.  In essence, the conclusion is "whether you intended it or not, the fact is that you did discriminate".  It works pretty well in, say, police examinations/hiring where minorities are really underrepresented.  It just doesn't work as well if the discrimination is in favor of obtaining "equitable" results.

[Kamaji]

Well, you can absolutely win a case based on disparate impact alone without any finding of intent at all.  It's not an element that needs to be proven.  In essence, the conclusion is "whether you intended it or not, the fact is that you did discriminate".  It works pretty well in, say, police examinations/hiring where minorities are really underrepresented.  It just doesn't work as well if the discrimination is in favor of obtaining "equitable" results.

It shouldn't work at all.  Invidious discrimination is intention-based, not the result of mere correlation, and the fact that the case law allows disparate impact without a showing of intent - even if one goes along with Brian Daily intent - is a problem.  In addition to giving bad litigation outcomes, it fuels the DIE nonsense and the anti-racist racism of the left, where mere correlation is confused with causation.

[Maj. Bill Martin]

It shouldn't work at all.  Invidious discrimination is intention-based, not the result of mere correlation, and the fact that the case law allows disparate impact without a showing of intent - even if one goes along with Brian Daily intent - is a problem.  In addition to giving bad litigation outcomes, it fuels the DIE nonsense and the anti-racist racism of the left, where mere correlation is confused with causation.

I agree.  Disparate impact cases are often used when the adoption of the standards can be shown to have not been racially motivated at the time it was adopted.  So what you have to show is 1) a clear statistical disparity, that 2) can be attributed to a facially neutral policy, practice, or procedure, etc., and 3) some variation (depending on the exact statute) on the idea that the  defendant has a business justification for that policy, practice, or procedure, and that there isn't an alternative one that would accomplish the same thing without the same adverse impact.

In any case, I think most of the cases challenges the attempted woke work-arounds to SCOTUS will be disparate treatment -- that they are deliberately granting racial preferences.