Category: reason

And Then the President Asked to be Impeached

White House Counsel Pat Cipollone has now released his response to the myriad House impeachment inquiries. It is quite the document, and can be read in all its glory here.

This is best understood as a political document. It might be worth unpacking its assertions about the respective constitutional powers of the House of Representatives and the White House and past constitutional practice, but those assertions seem mostly beside the point.

Cipollone, on behalf of the president, has thrown down the gauntlet. The White House will not offer documents or testimony that might put the president’s or the administration’s conduct in a better light. The House can either choose to impeach the president based on what it knows or can discover without the president’s cooperation, or it can move on. The president has dared the House to impeach him, and he has now chosen to mount his defense against possible removal in the Senate and in the court of public opinion.

Members of Congress of both parties should understand the institutional stakes here. If this president can simply issue a blanket refusal to cooperate with any congressional oversight of executive branch activities, then Congress should expect that future presidents will try to build on that example. Perhaps the Democrats in the House are overreacting to the available information about how the Trump administration has entangled its electoral interests with American foreign policy. If so, the Senate can render its judgment on that in an impeachment trial, and the voters can render their judgment on election day in 2020.

But even if the Republicans are not convinced that there is much of a fire beneath the smoke surrounding the Ukraine matter, they should think carefully about whether they want to facilitate a future president treating Congress the same way when the White House is once again in Democratic hands. Congress has played its own role across recent administrations in escalating conflict between presidents and legislatures of opposite parties. Past presidents have also attempted to straight-arm Congress. This is a dramatic escalation in White House tactics of obstruction. The shoe will eventually be on the other foot, and how Congress reacts to this White House will have consequences down the road.

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And Then the President Asked to be Impeached

White House Counsel Pat Cipollone has now released his response to the myriad House impeachment inquiries. It is quite the document, and can be read in all its glory here.

This is best understood as a political document. It might be worth unpacking its assertions about the respective constitutional powers of the House of Representatives and the White House and past constitutional practice, but those assertions seem mostly beside the point.

Cipollone, on behalf of the president, has thrown down the gauntlet. The White House will not offer documents or testimony that might put the president’s or the administration’s conduct in a better light. The House can either choose to impeach the president based on what it knows or can discover without the president’s cooperation, or it can move on. The president has dared the House to impeach him, and he has now chosen to mount his defense against possible removal in the Senate and in the court of public opinion.

Members of Congress of both parties should understand the institutional stakes here. If this president can simply issue a blanket refusal to cooperate with any congressional oversight of executive branch activities, then Congress should expect that future presidents will try to build on that example. Perhaps the Democrats in the House are overreacting to the available information about how the Trump administration has entangled its electoral interests with American foreign policy. If so, the Senate can render its judgment on that in an impeachment trial, and the voters can render their judgment on election day in 2020.

But even if the Republicans are not convinced that there is much of a fire beneath the smoke surrounding the Ukraine matter, they should think carefully about whether they want to facilitate a future president treating Congress the same way when the White House is once again in Democratic hands. Congress has played its own role across recent administrations in escalating conflict between presidents and legislatures of opposite parties. Past presidents have also attempted to straight-arm Congress. This is a dramatic escalation in White House tactics of obstruction. The shoe will eventually be on the other foot, and how Congress reacts to this White House will have consequences down the road.

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Gorsuch May Be Swing Vote in Decision Whether Civil Rights Act Protects LGBT Workers From Discrimination

Textual arguments about what “sex” means as a matter of statutory interpretation took center stage at the Supreme Court today, as the justices listened to attorneys argue whether the Civil Rights Act of 1964 protects LGBT people from workplace discrimination.

Based on today’s questioning, it may well be Trump appointee Neil Gorsuch who serves as the swing vote, and he might even be leaning toward including sexual orientation and gender identity under the Civil Rights Act’s workplace sex discrimination protections.

This morning, the Supreme Court took two hours to consider three cases of people being fired from their jobs, allegedly for being gay or transgender, to determine whether this was a violation of federal law. Two of the cases focused on men fired for being gay and were combined into one argument: Bostock v. Clayton County and Altitude Express v. Zarda. In these two cases, the employers denied that the employees’ sexual orientation contributed to their firings, but even if it had, the employers argued, the firings still did not violate federal law. The third case, R.G. & J.R. Funeral Homes v. Equal Employment Opportunity Commission, which involves a transgender funeral home director, was heard separately, directly after the consolidated oral arguments in the first two cases. In the transgender case, the owners of the funeral home have made it clear they have religious objections to accommodating transgender employees and would not allow Aimee Stephens to switch to wearing women’s clothing after her transition.

The overall conflict today pitted civil rights and gay rights advocates (David Cole of the American Civil Liberties Union represented the fired transgender funeral home director) against attorneys for the employers and against U.S. Solicitor General Noel Francisco. The Justice Department under President Trump has taken the position that neither sexual orientation nor gender identity are protected as the law is written and argue that Congress should add the categories through the legislative process.

While it’s clear that Congress did not intend to cover sexual orientation or gender identity back when the law at issue was passed in 1964, there was little interest among the justices in discussing what Congress “intended.” Much of the discussion and debate was completely “textual”—interpreting the common meaning of what the statute says and how it should be implemented.

Several of the justices made it abundantly clear that they were attempting to decide whether discrimination against LGBT folks could be classified as a type of “sex discrimination” and not what Congress was thinking when it passed the law. At one point, Justice Elena Kagan told Francisco directly, “[T]he lodestar of this Court’s statutory interpretation has been the text of a statute, not the legislative history.”

Thus, much of the entire debate revolved around the extent that discrimination against gay and transgender people is comparable to discrimination against men and women on the basis of whether they behave in an expected stereotypically masculine or feminine manner.

The distinction is relevant because of a previous Supreme Court precedent from, Price Waterhouse v. Hopkins (1989), in which the Court ruled that discrimination on the basis of whether or not a person behaves in the manner expected of her sex is forbidden under the Civil Rights Act. That case revolved around a woman who said she was discriminated against because she was too masculine and aggressive. The case was invoked repeatedly by all sides as they compared what happened back then to the three LGBT workers in these new cases.

That’s where Gorsuch expressed interest in considering that there is, in fact, a textualist argument that sexual orientation and gender identity might be protected under the Civil Rights Act. Solicitor General Francisco argued that sexual orientation and gender identity were different traits than simply sex, but Gorsuch pressed, “at least one contributing cause here appears to be sex,” and that in particular, the two gay men seemed to be discriminated against because of the sex of their partners. The same thing would not happen to heterosexual workers, so how could sex not be playing a role here?

But while Gorsuch seemed open to the argument that LGBT discrimination is based on sexual stereotypes, he also seemed to express a bit of hesitation during the second hour when the Court discussed the case of the transgender funeral home employee. Gorsuch asked Cole:

[A]ssume for the moment I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that—that Congress didn’t think about it and that—that is more effective—more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.

Cole responded that he didn’t think a ruling would result in an upheaval because transgender people already exist in America and have for a while. Employers would still be able to apply sex-based dress codes as long as transgender workers were able to dress as the gender they’ve chosen and not be forced to dress on the basis of their birth sex. Cole argued:

[A]t the end of the day, the objection to someone for being transgender is the ultimate sex stereotype. It is saying, I object to you because you fail to conform to this stereotype: The stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man. That is a true generalization for most of us, but it is not true for 1.5 million transgender Americans.

Chief Justice John Roberts and Justice Samuel Alito seemed to prefer to leave it up to Congress and state lawmakers to hammer out solutions, but their questioning was not overly hostile. There was also a lot of questioning about the high likelihood that the Supreme Court will have to weigh in on issues relating to which bathrooms and facilities transgender people should use and which team transgender athletes would play for. Justice Brett Kavanaugh asked just one question about how to draw a distinction between the literal and ordinary meanings of the words “because of sex” and the question did not hint at which way he might rule.

Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg, meanwhile, all seemed to support the LGBT side, though Ginsburg asked many questions trying to determine how far a ruling in favor of the three employees might expand beyond just the workplace.

The decisions are expected in June, right in the middle of primary season. You can read the transcripts of today’s arguments here and here.

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Gorsuch May Be Swing Vote in Decision Whether Civil Rights Act Protects LGBT Workers From Discrimination

Textual arguments about what “sex” means as a matter of statutory interpretation took center stage at the Supreme Court today, as the justices listened to attorneys argue whether the Civil Rights Act of 1964 protects LGBT people from workplace discrimination.

Based on today’s questioning, it may well be Trump appointee Neil Gorsuch who serves as the swing vote, and he might even be leaning toward including sexual orientation and gender identity under the Civil Rights Act’s workplace sex discrimination protections.

This morning, the Supreme Court took two hours to consider three cases of people being fired from their jobs, allegedly for being gay or transgender, to determine whether this was a violation of federal law. Two of the cases focused on men fired for being gay and were combined into one argument: Bostock v. Clayton County and Altitude Express v. Zarda. In these two cases, the employers denied that the employees’ sexual orientation contributed to their firings, but even if it had, the employers argued, the firings still did not violate federal law. The third case, R.G. & J.R. Funeral Homes v. Equal Employment Opportunity Commission, which involves a transgender funeral home director, was heard separately, directly after the consolidated oral arguments in the first two cases. In the transgender case, the owners of the funeral home have made it clear they have religious objections to accommodating transgender employees and would not allow Aimee Stephens to switch to wearing women’s clothing after her transition.

The overall conflict today pitted civil rights and gay rights advocates (David Cole of the American Civil Liberties Union represented the fired transgender funeral home director) against attorneys for the employers and against U.S. Solicitor General Noel Francisco. The Justice Department under President Trump has taken the position that neither sexual orientation nor gender identity are protected as the law is written and argue that Congress should add the categories through the legislative process.

While it’s clear that Congress did not intend to cover sexual orientation or gender identity back when the law at issue was passed in 1964, there was little interest among the justices in discussing what Congress “intended.” Much of the discussion and debate was completely “textual”—interpreting the common meaning of what the statute says and how it should be implemented.

Several of the justices made it abundantly clear that they were attempting to decide whether discrimination against LGBT folks could be classified as a type of “sex discrimination” and not what Congress was thinking when it passed the law. At one point, Justice Elena Kagan told Francisco directly, “[T]he lodestar of this Court’s statutory interpretation has been the text of a statute, not the legislative history.”

Thus, much of the entire debate revolved around the extent that discrimination against gay and transgender people is comparable to discrimination against men and women on the basis of whether they behave in an expected stereotypically masculine or feminine manner.

The distinction is relevant because of a previous Supreme Court precedent from, Price Waterhouse v. Hopkins (1989), in which the Court ruled that discrimination on the basis of whether or not a person behaves in the manner expected of her sex is forbidden under the Civil Rights Act. That case revolved around a woman who said she was discriminated against because she was too masculine and aggressive. The case was invoked repeatedly by all sides as they compared what happened back then to the three LGBT workers in these new cases.

That’s where Gorsuch expressed interest in considering that there is, in fact, a textualist argument that sexual orientation and gender identity might be protected under the Civil Rights Act. Solicitor General Francisco argued that sexual orientation and gender identity were different traits than simply sex, but Gorsuch pressed, “at least one contributing cause here appears to be sex,” and that in particular, the two gay men seemed to be discriminated against because of the sex of their partners. The same thing would not happen to heterosexual workers, so how could sex not be playing a role here?

But while Gorsuch seemed open to the argument that LGBT discrimination is based on sexual stereotypes, he also seemed to express a bit of hesitation during the second hour when the Court discussed the case of the transgender funeral home employee. Gorsuch asked Cole:

[A]ssume for the moment I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that—that Congress didn’t think about it and that—that is more effective—more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.

Cole responded that he didn’t think a ruling would result in an upheaval because transgender people already exist in America and have for a while. Employers would still be able to apply sex-based dress codes as long as transgender workers were able to dress as the gender they’ve chosen and not be forced to dress on the basis of their birth sex. Cole argued:

[A]t the end of the day, the objection to someone for being transgender is the ultimate sex stereotype. It is saying, I object to you because you fail to conform to this stereotype: The stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man. That is a true generalization for most of us, but it is not true for 1.5 million transgender Americans.

Chief Justice John Roberts and Justice Samuel Alito seemed to prefer to leave it up to Congress and state lawmakers to hammer out solutions, but their questioning was not overly hostile. There was also a lot of questioning about the high likelihood that the Supreme Court will have to weigh in on issues relating to which bathrooms and facilities transgender people should use and which team transgender athletes would play for. Justice Brett Kavanaugh asked just one question about how to draw a distinction between the literal and ordinary meanings of the words “because of sex” and the question did not hint at which way he might rule.

Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg, meanwhile, all seemed to support the LGBT side, though Ginsburg asked many questions trying to determine how far a ruling in favor of the three employees might expand beyond just the workplace.

The decisions are expected in June, right in the middle of primary season. You can read the transcripts of today’s arguments here and here.

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Study Finds Marijuana Legalization Had Little Impact on Crime in Colorado or Washington

Last night I debated drug policy at the Soho Forum with Alex Berenson, who claims in his book Tell Your Children that marijuana legalization caused “sharp increases in murders and aggravated assaults” in Colorado and Washington. There were already several reasons to question that claim, and a study published today in Justice Quarterly casts further doubt on it, finding “no statistically significant long-term effects of recreational cannabis laws or the initiation of retail sales on violent or property crime rates in these states.”

Ruibin Lu, an assistant professor of criminal justice at Stockton University, and nine collaborators compared monthly crime rates in Colorado and Washington to monthly crime rates in “the 21 states that have not legalized marijuana use for recreational or medical purposes on a large scale.” Based on FBI data for 1999 through 2016, they considered what happened after legalization was approved in 2012 and after state-licensed sales to recreational consumers began in 2014. “In general,” they report, “the results suggest that marijuana policies and laws have had little effect on crime in Colorado or Washington State.”

While both states saw statistically significant increases in property crime immediately after legalization, those changes were short-lived. Compared to the control states, violent crime rose slightly in Colorado and Washington after legalization, but the differences were not statistically significant. After retail sales began, violent crime rates remained essentially the same in both states. That’s a far cry from the “sharp increases in murders and aggravated assaults” reported by Berenson.

Although Lu et al. do not separately report homicide rates, their tables show that, compared to the control states, Colorado saw a slight drop in aggravated assaults after legalization and a slight increase after retail sales started. In Washington, there was a slight increase after legalization and essentially no change after the state’s pot shops opened. Except for the small post-legalization increase in Washington, none of these differences was statistically significant.

“Our results suggest that there may have been some immediate increases in crime at the point of legalization,” Lu et al. say, “yet there have been essentially no long-term shifts in crime rates because of legalization, aside from a decline in burglary in Washington. Though the short-term increases might appear to suggest that marijuana increased crime, we caution against this interpretation as the increases do not reflect permanent shifts (that is, these are shifts in intercepts, not slopes) and could be artificially induced by the small number of time units between legalization and sales…. Following legalization and the start of retail sales (2014), Colorado and Washington follow the same basic pattern as the control states, suggesting that legalization did not result in any major increases or decreases in crime.”

Lu et al. caution against drawing conclusions based on simple before-and-after comparisons that do not take into account pre-existing trends or crime rates in states that have not legalized marijuana. “Many politicians are inclined to make use of the earliest available data, and unfortunately too often what is available for public consumption at the outset of change in policy represents research employing limited pre/post analyses or misrepresentation of facts,” they write. “A lack of robust research studies and overreliance on limited pre-post analysis perpetuate a state of confusion concerning to what extent legalization influences crime.”

Although their study includes just four years of post-legalization data, Lu and her colleagues sought to address the shortcomings of prior analyses by using a more rigorous methodology. “Our results are robust in that we examined the first two states to legalize marijuana and compared them to states with no marijuana laws at all,” they write. “Moreover, we estimated our models in a variety of manners, including models with different interruption points, single-group interrupted time series analyses, and as a set of pooled cross-sectional models. None of our models revealed long-term effects of marijuana legalization on serious crime rates.”

Berenson argues that marijuana causes psychosis, which leads to violent crime. “The black tide of psychosis and the red tide of violence are rising together on a green wave,” he warns in his book. So far the evidence from Colorado and Washington, the first states to legalize marijuana for recreational use, does not seem to support that description.

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Study Finds Marijuana Legalization Had Little Impact on Crime in Colorado or Washington

Last night I debated drug policy at the Soho Forum with Alex Berenson, who claims in his book Tell Your Children that marijuana legalization caused “sharp increases in murders and aggravated assaults” in Colorado and Washington. There were already several reasons to question that claim, and a study published today in Justice Quarterly casts further doubt on it, finding “no statistically significant long-term effects of recreational cannabis laws or the initiation of retail sales on violent or property crime rates in these states.”

Ruibin Lu, an assistant professor of criminal justice at Stockton University, and nine collaborators compared monthly crime rates in Colorado and Washington to monthly crime rates in “the 21 states that have not legalized marijuana use for recreational or medical purposes on a large scale.” Based on FBI data for 1999 through 2016, they considered what happened after legalization was approved in 2012 and after state-licensed sales to recreational consumers began in 2014. “In general,” they report, “the results suggest that marijuana policies and laws have had little effect on crime in Colorado or Washington State.”

While both states saw statistically significant increases in property crime immediately after legalization, those changes were short-lived. Compared to the control states, violent crime rose slightly in Colorado and Washington after legalization, but the differences were not statistically significant. After retail sales began, violent crime rates remained essentially the same in both states. That’s a far cry from the “sharp increases in murders and aggravated assaults” reported by Berenson.

Although Lu et al. do not separately report homicide rates, their tables show that, compared to the control states, Colorado saw a slight drop in aggravated assaults after legalization and a slight increase after retail sales started. In Washington, there was a slight increase after legalization and essentially no change after the state’s pot shops opened. Except for the small post-legalization increase in Washington, none of these differences was statistically significant.

“Our results suggest that there may have been some immediate increases in crime at the point of legalization,” Lu et al. say, “yet there have been essentially no long-term shifts in crime rates because of legalization, aside from a decline in burglary in Washington. Though the short-term increases might appear to suggest that marijuana increased crime, we caution against this interpretation as the increases do not reflect permanent shifts (that is, these are shifts in intercepts, not slopes) and could be artificially induced by the small number of time units between legalization and sales…. Following legalization and the start of retail sales (2014), Colorado and Washington follow the same basic pattern as the control states, suggesting that legalization did not result in any major increases or decreases in crime.”

Lu et al. caution against drawing conclusions based on simple before-and-after comparisons that do not take into account pre-existing trends or crime rates in states that have not legalized marijuana. “Many politicians are inclined to make use of the earliest available data, and unfortunately too often what is available for public consumption at the outset of change in policy represents research employing limited pre/post analyses or misrepresentation of facts,” they write. “A lack of robust research studies and overreliance on limited pre-post analysis perpetuate a state of confusion concerning to what extent legalization influences crime.”

Although their study includes just four years of post-legalization data, Lu and her colleagues sought to address the shortcomings of prior analyses by using a more rigorous methodology. “Our results are robust in that we examined the first two states to legalize marijuana and compared them to states with no marijuana laws at all,” they write. “Moreover, we estimated our models in a variety of manners, including models with different interruption points, single-group interrupted time series analyses, and as a set of pooled cross-sectional models. None of our models revealed long-term effects of marijuana legalization on serious crime rates.”

Berenson argues that marijuana causes psychosis, which leads to violent crime. “The black tide of psychosis and the red tide of violence are rising together on a green wave,” he warns in his book. So far the evidence from Colorado and Washington, the first states to legalize marijuana for recreational use, does not seem to support that description.

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Ellen DeGeneres Refuses to Be Shamed for Watching Football with George W. Bush

On Sunday, Ellen DeGeneres attended a Dallas Cowboys football game. It was noteworthy because of whom she was seated next to: former President George W. Bush. The pair could be seen in pictures and a video clip enjoying the afternoon together. (Their respective partners, Arrested Development actress Portia di Rossi and former First Lady Laura Bush, were there too.)

In 2019, everything must be political. And so the news that DeGeneres could make it through an entire football game seated next to the odiously conservative Bush and actually have a good time made people very mad. You will not be surprised to learn that some took to social media to vent. Here is a sampling of what they had to say.

On Tuesday, DeGeneres addressed the controversy during her show. She highlighted a supportive tweet from someone who wrote, “Seeing Ellen and George Bush together makes me have faith in America again.”

“Here’s the thing,” said DeGeneres. “I’m friends with George Bush. In fact, I’m friends with a lot of people who don’t share the same beliefs I have. We’re all different and I think that we’ve forgotten that’s okay that we’re all different.”

“Just because I don’t agree with someone on everything doesn’t mean I’m not going to be friends with them,” DeGeneres continued. “When I say, ‘Be kind to one another,’ I don’t mean only the people that think the same way that you do.”

I’m with Ellen. This perspective is sadly all-too-often absent from our current cultural dialogue, with its emphasis on cancelling anyone and everyone who did or said something wrong. It’s becoming harder and harder for people to get along with each other, and be civil toward one another, when they disagree about the issues—even though, as Reason Senior Editor Brian Doherty has persuasively argued, it’s rarely a good idea to end a relationship over politics. Gratuitous cruelty toward people who are part of the other side, tribe, or team does not make the world a better place.

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Ellen DeGeneres Refuses to Be Shamed for Watching Football with George W. Bush

On Sunday, Ellen DeGeneres attended a Dallas Cowboys football game. It was noteworthy because of whom she was seated next to: former President George W. Bush. The pair could be seen in pictures and a video clip enjoying the afternoon together. (Their respective partners, Arrested Development actress Portia di Rossi and former First Lady Laura Bush, were there too.)

In 2019, everything must be political. And so the news that DeGeneres could make it through an entire football game seated next to the odiously conservative Bush and actually have a good time made people very mad. You will not be surprised to learn that some took to social media to vent. Here is a sampling of what they had to say.

On Tuesday, DeGeneres addressed the controversy during her show. She highlighted a supportive tweet from someone who wrote, “Seeing Ellen and George Bush together makes me have faith in America again.”

“Here’s the thing,” said DeGeneres. “I’m friends with George Bush. In fact, I’m friends with a lot of people who don’t share the same beliefs I have. We’re all different and I think that we’ve forgotten that’s okay that we’re all different.”

“Just because I don’t agree with someone on everything doesn’t mean I’m not going to be friends with them,” DeGeneres continued. “When I say, ‘Be kind to one another,’ I don’t mean only the people that think the same way that you do.”

I’m with Ellen. This perspective is sadly all-too-often absent from our current cultural dialogue, with its emphasis on cancelling anyone and everyone who did or said something wrong. It’s becoming harder and harder for people to get along with each other, and be civil toward one another, when they disagree about the issues—even though, as Reason Senior Editor Brian Doherty has persuasively argued, it’s rarely a good idea to end a relationship over politics. Gratuitous cruelty toward people who are part of the other side, tribe, or team does not make the world a better place.

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Harvard Discriminates Against Asian-Americans, and ‘Implicit’ Bias Training Won’t Fix That

Last week, Judge Allison Burroughs of the U.S. District Court for the District of Massachusetts sided with Harvard University and upheld its race-conscious admissions program.

This was not really a surprise, as existing Supreme Court precedent does permit universities to consider an applicant’s race as one criteria for admissions, if narrowly-tailored to create a diverse student body. Burroughs ruled that Harvard’s policy falls within those guidelines.

Critics point out that Harvard’s approach has allowed admissions officers to engage in blatant discrimination on the basis of skin color. The plaintiff in the Harvard case, Students for Fair Admissions Inc., contended that Asian-American applicants are specifically disfavored under a race-conscious admissions policy, and that this violates federal civil rights law. They presented considerable evidence that admissions officers gave them low ratings on subjective grounds like personality. Meanwhile, the plaintiffs argued, Harvard did everything possible to artificially engineer a campus that was well-represented by students from “sparse country“—the South and the Great Plains—and thus significantly more white than it would have been otherwise.

Students for Fair Admissions, Inc., plans to appeal the case. It could eventually end up before the Supreme Court, where the new, clear-cut conservative majority may be inclined to revise the previous decisions that limited, but left intact, certain race-based admissions schemes.

One little-discussed aspect of Burrough’s decision drew the attention of The Chronicle of Higher Education:

Allison D. Burroughs, a U.S. district judge in Boston, noted in the conclusion of her 130-page ruling that while the university’s policy “survives strict scrutiny, it is not perfect.” Among her recommendations for improvement? Training to avoid implicit bias for Harvard’s admissions officers.

Training to stop bias that is implicit and not overt, commonly known as “implicit-bias training,” is a contemporary outgrowth of sensitivity and diversity training. It has been used by both companies and colleges, including on faculty-hiring committees. But its reach into admissions has been limited, and some question how it would be carried out there.

Implicit bias, though, is a very fraught psychological concept. A once beloved tool for measuring the supposedly subconscious biases people have against marginalized groups—the implicit association test—doesn’t actually work. There’s scant evidence that the workshops and training modules designed to combat implicit bias actually do much good.

But the bigger issue in this specific case is that such training seems unequal to the task of addressing the biases of Harvard’s admissions program. These biases are not implicit: They are explicit. Harvard is specifically favoring certain racial groups over others in an effort to make the campus less Asian. This is not a subconscious, invisible, unapparent bias. It’s deliberate discrimination, and obvious to all. It’s long overdue for a retrial.

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Harvard Discriminates Against Asian-Americans, and ‘Implicit’ Bias Training Won’t Fix That

Last week, Judge Allison Burroughs of the U.S. District Court for the District of Massachusetts sided with Harvard University and upheld its race-conscious admissions program.

This was not really a surprise, as existing Supreme Court precedent does permit universities to consider an applicant’s race as one criteria for admissions, if narrowly-tailored to create a diverse student body. Burroughs ruled that Harvard’s policy falls within those guidelines.

Critics point out that Harvard’s approach has allowed admissions officers to engage in blatant discrimination on the basis of skin color. The plaintiff in the Harvard case, Students for Fair Admissions Inc., contended that Asian-American applicants are specifically disfavored under a race-conscious admissions policy, and that this violates federal civil rights law. They presented considerable evidence that admissions officers gave them low ratings on subjective grounds like personality. Meanwhile, the plaintiffs argued, Harvard did everything possible to artificially engineer a campus that was well-represented by students from “sparse country“—the South and the Great Plains—and thus significantly more white than it would have been otherwise.

Students for Fair Admissions, Inc., plans to appeal the case. It could eventually end up before the Supreme Court, where the new, clear-cut conservative majority may be inclined to revise the previous decisions that limited, but left intact, certain race-based admissions schemes.

One little-discussed aspect of Burrough’s decision drew the attention of The Chronicle of Higher Education:

Allison D. Burroughs, a U.S. district judge in Boston, noted in the conclusion of her 130-page ruling that while the university’s policy “survives strict scrutiny, it is not perfect.” Among her recommendations for improvement? Training to avoid implicit bias for Harvard’s admissions officers.

Training to stop bias that is implicit and not overt, commonly known as “implicit-bias training,” is a contemporary outgrowth of sensitivity and diversity training. It has been used by both companies and colleges, including on faculty-hiring committees. But its reach into admissions has been limited, and some question how it would be carried out there.

Implicit bias, though, is a very fraught psychological concept. A once beloved tool for measuring the supposedly subconscious biases people have against marginalized groups—the implicit association test—doesn’t actually work. There’s scant evidence that the workshops and training modules designed to combat implicit bias actually do much good.

But the bigger issue in this specific case is that such training seems unequal to the task of addressing the biases of Harvard’s admissions program. These biases are not implicit: They are explicit. Harvard is specifically favoring certain racial groups over others in an effort to make the campus less Asian. This is not a subconscious, invisible, unapparent bias. It’s deliberate discrimination, and obvious to all. It’s long overdue for a retrial.

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