The public radio show This American Life is at once old school and ahead of its time. A weekly hourlong program divided into acts, the show’s stock and trade are character-driven stories that are long on surprising plot twists.
In a June 27 "Crime" blog post, Justin Peters originally stated that Dzhokhar Tsarnaev is 20 years old. He is 19.
George Zimmerman followed Trayvon Martin because he perceived him as dangerous. The defense argues he was, the prosecution argues he wasn’t. No one, of course, argues that Zimmerman approached Martin with kindness, or stopped to consider the boy as anything other than suspicious, an outsider. Ultimately Zimmerman shot and killed Martin. A lack of empathy can produce national tragedies. But it also drives quieter, more routine forms of discrimination.
For supporters of affirmative action, the Supreme Court’s opinion in Fisher v. University of Texas, Monday’s ruling on affirmative action, is like Animal House’s double secret probation. The Supreme Court did not end race-based affirmative action programs. Instead, the majority of seven doubled down on “strict scrutiny”—the relatively exacting standard courts use to assess whether the government can make a law that treats people differently on the basis of race. This isn’t new—the federal courts have applied strict scrutiny to race-based affirmation action for 35 years, requiring programs to be “narrowly tailored” to serve a university’s “compelling interest” in the pedagogical benefits of diversity. But if the court’s previous rulings already required strict scrutiny, Fisher imposes double secret strict scrutiny.
But Fisher still leaves several questions unanswered. The court said that before turning to traditional affirmative action, schools have to prove that “no workable race-neutral alternatives would produce the educational benefits of diversity.” How will we know? Back in 1996, when U.T. used race explicitly, it admitted an entering class that was 4.1 percent black and 14.5 percent Hispanic. Then it turned to a race-neutral admissions policy (the Top Ten Percent plan, with automatic acceptance for the best 10 percent of each high school’s graduating class) and the admitted class was 4.5 percent black and 16.9 percent Hispanic. Because the numbers are similar, it may look as if adding race-based affirmation action was unnecessary. But numbers don’t tell the whole story. Many at UT felt the Top Ten Percent plan was a blunt instrument that didn’t allow admissions officers to consider the varying quality of different high school programs in the state: They worried that the students admitted this way were not on the whole as qualified as those admitted under the more flexible approach that included affirmative action. And the Top Ten Percent plan only worked because Texas’ neighborhoods and high schools are highly segregated. So universities that draw applicants from a pool of less segregated high schools couldn’t use a similar approach.
Another open question: What exactly is a race-neutral means of achieving racial diversity? Some opponents of affirmative action argue that a properly crafted class-based affirmative action plan would yield significant racial diversity. But in order to even get close to the type of racial diversity most affirmative action plans achieve, it’s not enough to simply consider family income or even wealth. You need to include a long list of factors, such as the educational achievement of the applicant’s parents and grandparents, median income of the applicant’s neighborhood, whether English is the main language spoken at home—the list goes on. At some point, as Justice Ruth Bader Ginsburg pointed out in her Fisher dissent, you have to wonder whether such a “race-neutral” alternative is really just a disguised and hobbled form of regular old affirmative action.
This brings us to the secret part of Fisher’s double secret strict scrutiny. The court’s focus on race-neutral alternatives encourages universities to pursue racial diversity by proxy, or to hide race consciousness in increasingly subjective and individualized reviews of admissions files. Texas’ Top Ten Percent plan, Ginsburg reminds us, is as race-conscious as any affirmative action program: It was devised precisely because admitting a sample of students from each racially segregated public school would guarantee racial diversity at the college level. Any admissions policy that uses class considerations to produce racial diversity has the same problem.
That many opponents of affirmative action are willing to countenance such transparent evasions proves the weakness of the crucial constitutional argument against affirmative action. This is Justice Clarence Thomas’ claim that it’s impossible to distinguish between well-meaning racial classifications and malicious ones, between efforts to promote integration and to promote segregation. After Brown v. Board of Education invalidated explicit segregation in public schools, districts in the South came up with a host of formally race-neutral alternatives, such as assigning students to the same schools they had attended in the past (when the schools were segregated by the force of law). These schemes died because the courts saw them for what they were: segregation by other means. If there is really no difference between affirmative action and Jim Crow, then any race-neutral effort to promote racial diversity should be as illegal as a race-neutral attempt to perpetuate Jim Crow. Indeed, if we follow this logic to its conclusion, the desire to have racially integrated schools, workplaces, and neighborhoods is as morally reprehensible as a bigot’s desire to avoid contact with blacks: The only acceptable position on race is complete indifference.
Fisher also says the courts should not defer to universities about whether they need affirmative action to achieve diversity. But if they don’t defer, then judges must decide how much and what type of diversity is good enough and how much and what type some hypothetical race-neutral alternative would achieve. For instance, consider an alternative to affirmative action that admits most black and Hispanic students on the basis of family income and wealth. Won’t a freshman class in which the black and Hispanic students are disproportionately poor reinforce racial stereotypes, make it less likely that students of different races will have things in common, and hence undermine the benefits of diversity? Can the university consider diversity within a racial group when defending traditional affirmative action?
The Constitution doesn’t answer these questions, nor do courts have any special insight into them. That’s why the lower court in Fisher wisely opted to defer to U.T.’s judgment that it needed affirmative action. Such deference is a good idea, even if you think affirmative action isn’t. There are plenty of respectable reasons to oppose affirmative action: You might think it’s an unjustified departure from the ideal of objective merit. Or that it causes more resentment and racial discord than it’s worth. Or that it’s a band-aid that fails to deal with the severe root causes of racial inequality. Or that its cosmetic egalitarianism distracts from the corrupt, class hierarchy that powers selective universities. But none of these are constitutional reasons. They involve political commitments and public policy judgments. Universities aren’t perfect, but they are better at making these decisions than judges are. And they are kept in line by the political process (which has banned affirmative action in seven states) and by faculty and alumni, many of whom have their own reservations about affirmative action.
Some commentators hope that by forcing selective schools to focus on class diversity, a crackdown on affirmative action is a blow struck against elitism. But instead, restricting affirmative action may turn racial diversity into another luxury that only the most elite schools can offer. That’s the direction public K-12 education has taken since the Supreme Court’s 2003 ruling making it harder for K-12 schools to pursue racial integration. Today, in many cities, you’re more likely to find a racially diverse student body in an elite private school that can still consider race in admissions than in a public school that, for the most part, can’t.
The effect of Fisher may be similar, even though it will apply to both public and private colleges and universities. A rich university with a small entering class can afford to review each plausible application individually and apply the highly nuanced type of evaluation that might yield racial diversity without explicitly considering race. But a cash-strapped public university with a large entering class must rely on a relatively simple formula for much of its screening. Few public schools will be able to turn to something like the Top Ten Percent plan as a simple proxy for race. A rich university can afford costly outreach efforts and big scholarships to attract poor—disproportionately minority—students. A school with a limited budget probably can’t. Thanks to the Supreme Court, the experience of racial diversity may soon become the exclusive mark of an elite education.
Texas Democrat Wendy Davis thrilled abortion rights supporters on Tuesday night with a 13-hour filibuster, helping to beat back a Republican bill that would have closed most abortion clinics in the state. Huge crowds gathered inside and outside the Texas Senate chamber as Davis resisted the urge to sit, lean, or digress. Why did U.S. senators stop holding talking filibusters?
* Supreme Court opinions are indeed very long.
Windsor v. United States, decided Wednesday, invalidates a provision of the Defense of Marriage Act that denies federal marriage benefits to same-sex couples. Justice Anthony Kennedy’s majority opinion points out that although laws as to who may marry (blood relatives? children?) differ quite a bit from state to state, federal benefits are uniform across states. That is, if a marriage is valid under one state’s law, that’s enough for the couple to qualify for those benefits, regardless of any differences between that state’s law and another state’s law. But DOMA, enacted in 1996, denied federal benefits to married same-sex couples even if their marriage was lawful. With telling quotations from the legislative history, Kennedy shows that DOMA’s denial of federal benefits to lawful same-sex marriages—alone among marriages—was motivated by a hostility that appears to have no basis related to any public interest. DOMA imposes both financial and psychological harm on same-sex married couples. The imposition is gratuitous. It comes close to saying: We’re not giving you money only because we don’t like you even though you’re loyal, law-abiding, and productive citizens. That sounds like a denial of equal protection, which the Supreme Court has long considered an implicit part of the due process clause of the Fifth Amendment (the due process clause that constrains federal as distinct from state action).
Do you have any Tylenol in your house? Not store-brand acetaminophen pills that you happen to refer to as Tylenol, but the real-deal Tylenol manufactured by Johnson & Johnson? How about Advil or Bayer aspirin? If you’re a doctor, a nurse, or a pharmacist, the answer is probably no. If the answer is yes, you’re wasting your money. And that’s what an awful lot of us are doing, according to intriguing new research from the University of Chicago Business School into the strange economic underworld of pure branding effects.
Texas politics favors the theatrical. “Pappy” O’Daniel, the flour-milling Depression-era governor, won his position on the strength of his Western swing band. Texas Democrats idolize Ann Richards, the wise-cracking, tough-talking former governor and the last Democrat to hold the position. She was liberal, and she was a winner. Her ghost has totemic importance for Texas Democrats. For whatever reason—whether it be the state’s historically ingrained imbalances of party power, or an emphasis on individualism that outstrips that of most other parts of the country—showmanship is virtually a requirement for political office.
Struggling to understand what the Supreme Court’s gay-marriage decisions mean, Stephen Colbert interviewed Emily Bazelon on Wednesday night's show. Watch her answer to the foremost question on Colbert’s mind: “Is there any way we’re ever going to get the gay toothpaste back in the tube?”
Become a fan of DoubleX on Facebook. Leave us love letters and see what other listeners are saying about the Gabfest.
Last year’s Libor scandal was a shock to the body politic in London. Despite all that had gone before, the public and their representatives were stunned to learn that bankers had systematically undermined the foundations of a global market benchmark for personal gain. Britain’s chancellor of the exchequer, George Osborne, felt compelled to launch a parliamentary inquiry. On June 19, after a year’s work, the Parliamentary Commission on Banking Standards finally laid a large egg.
I’m one of those great dads who decide, late on a Friday afternoon, to do something special for the kids over the weekend. I’m also one of those dads whose imagination for special activities to make the kids happy rarely extends beyond buying them stuff. So there we were last week, looking at Amazon for something for my 2-year-old son. He likes cars, and he’s lately been interested in creating elaborate scenarios for his toy vehicles. As I browsed I came upon something called BluTrack, a long, flexible race-car track that can be assembled into a variety of shapes. It seemed like a toy we could play with together and good for at least 20 minutes of fun, which for a 2-year-old is pretty much all the time in the world.
Work by scientists at McMaster University in Hamilton, Ontario, and other institutions shows, for instance, that even a few minutes of training at an intensity approaching your maximum capacity produces molecular changes within muscles comparable to those of several hours of running or bike riding.—The New York Times, “The Scientific 7-Minute Workout,” May 9, 2013
For years, Barack Obama was able to keep his poll numbers high because the American public saw him as above the fray. But now that his poll numbers are dipping, he lacks the personal relationships to fall back on when the worm turns—in part because he's stayed so above the fray. Here's how it happened, in an excerpt from Jonathan Alter's The Center Holds: Obama and his Enemies, out now from Simon & Schuster.
As wildfire season peaks this summer and Colorado recovers from a destructive 15,500-acre fire, U.S. Forest Service employees, stationed on remote mountaintops, will keep watch across the country. Lookouts like these men and women have served the Forest Service, state agencies, and private landowners for more than a century, and have developed a rich tradition of self-sufficiency and Americana.
Ten years ago, a young man destined to transform the sport of basketball was drafted into the NBA. He hadn’t played a single minute in college and had appeared on the cover of a national magazine before turning 18. “He’s going to own the game,” one scout declared.
Hi, Mark Edmundson, you big-time poetry troll. I am not sure where to start with you. You took to Harper’s this month to denounce contemporary American poets. You upbraided them for their “inwardness and evasion,” their “blander, more circumscribed mode,” and claimed that they cast “unambitious spells.” You scolded them for playing “small-time games” with “low stakes,” timidly avoiding the words “we” and “our,” neglecting pop culture, and refusing to offer up a “comprehensive vision,” a “full-scale map of experience” encompassing politics, childhood, love, death, society, and nature. You scorched them in aggregate and you scorched them individually: W.S. Merwin is “oblique, equivocal, painfully self-questioning.” John Ashbery “says little.” Of Anne Carson: “The title of a recent profile in the New York Times, ‘The Inscrutable Brilliance of Anne Carson,’ has it half right.” Jorie Graham is “portentous,” Paul Muldoon “opaque.” As for Adrienne Rich, “the gift for artful expression is not hers.” You go after Sharon Olds, Mary Oliver, Charles Simic, Frank Bidart, Robert Pinsky, and Robert Hass, even the late James Merrill, all of whom deserve pages and pages of defense (and are likely getting it: I don’t even want to think about the contents of your inbox right now, Mark). Yes, your screed was a passionate piece of writing, dripping with erudition. You quoted great poets down through history: Dante, Milton, Emerson, Wordsworth, Yeats, Frost, Plath, Lowell. You did exactly what you want today’s poets to do, which is make a sweeping, fervent argument about something that matters. Unfortunately, you are completely out of your mind.
Is it time to stop attacking male writers for being misogynistic if their characters sleep with a lot of people, or not in the right way? Roxana Robinson’s recent attack on James Salter for being a misogynist was infinitely more graceful and nuanced than these sorts of attacks usually are, but the underlying charge that a male writer is sexist if you don’t like their male character is a flawed way to approach the delicate and mysterious possibilities of literature. These sorts of emotionally and politically charged arguments stray too far from the words that are actually on the page, and hold the writer to a standard of behavior that is more suited to who you want to be friends with or sleep with than who you want to read; it becomes character assassination rather than literary criticism.
I’m standing outside an imposing four-story graystone townhouse. Located on a leafy, blossoming block of East 94th Street in Manhattan, it’s the headquarters and worship center of the Ramakrishna-Vivekananda Society, the spiritual home to J.D. Salinger during his mystifying Silent Years. The home to his late guru, Swami Nikhilananda, a name I’m sure you know but one I only just learned from reading some Salinger letters recently donated to the Morgan Library by the swamis from the Center here.