Category Archives: regulation

College Entrance Discrimination

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A letter writer in Monday’s Wall Street Journal Letters section wants the Supreme Court to rule in favor of racial discrimination, at least as practiced by Harvard, in the Students for Fair Admissions v Harvard case.

If the plaintiffs…win, you can bet that elite college- and graduate-admissions offices around the country will establish workarounds to assure that opportunities remain for admittance of significant numbers of underrepresented minorities.

Therefore, he asserts,

The justices would be wise to take a pass on the Harvard case, or to affirm the lower courts’ decisions.

Which decisions upheld Harvard’s practice of racial discrimination for admission to its ivy-coated halls.

Harvard, to the letter writer’s first plaint, already uses “workarounds”—opaque and obscure criteria for assessing admissions “essays” and “descriptions of what this means to me” for starters—in selecting entrants on the basis of race while nonselecting other entrants on the basis of race.

Were the letter writer serious, he’d stop demanding free passes for the “underrepresented minorities” solely on the basis of their under-representation; that’s just racism under another guise. They’re underrepresented because they’re not qualified.

The solution is not free passes at the late date of college admissions applications, it’s getting these high school “graduates” actually educated and qualified.

More importantly, the solution is working to correct the K-12 systems and broken families that are the cause of unqualified-ness. But that takes actual work, and it’ll be a generational struggle to correct the ills so deeply embedded in what we’re pleased to call our education system. That solution is not the feel-good quick fix of which the Left is so enamored.

Another letter writer, however, takes a markedly differ view of the matter.

It [The Supreme Court] ought to take this case and apply strict scrutiny to the rationales advanced to justify treating some students more favorably than others merely on account of their ancestry.

But that doesn’t go far enough. As Chief Justice John Roberts already has said, [t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race. On this, he’s right.

There is no justification for discriminating on “account of ancestry.” No more strict scrutiny; end the use of race as a discriminant, no matter how far down the list of selection criteria. Any—any—use of race as a selection criterion is rank racism.

Full stop.

Definitions

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The Supreme Court has agreed to take up Dobbs v Jackson Women’s Health Organization, which is about a Mississippi law that substantially bars abortion after 15 weeks of pregnancy. The Court’s ruling, whatever they decide, however united or split they decide to be, will substantially impact their 1992 Planned Parenthood v Casey ruling that created a bar against “substantial burdens” on a putative right to abortion and their Roe v Wade ruling of 20 years earlier that manufactured out of the umbras a “right” to abortion.

The Court, though, in keeping with Chief Justice John Roberts’ timidity, is unlikely to decide the matter broadly, possibly even avoiding Constitutional matters altogether. It has taken up, from the several questions in front of the lower courts, only the narrow one of whether all pre-viability bans on elective abortions violate the Constitution.

It occurs to me that even that much hinges on the definition of “viability.”

Here’s the Merriam-Webster Online definition of viability as it pertains to babies:

the capability of a fetus to survive outside the uterus

Roe‘s creation set an implicitly technology-based threshold of the third trimester for its viability standard. There’s nothing in the definition of viability about requiring medical support—or medical intervention of any sort—for the fetus to survive outside the uterus. Medical technology has advanced considerably in the 40 years since Roe; the 15 weeks of Dobbs is within the capability of today’s medical technology.

Texas just enacted a similar ban, but that State’s threshold was set at 6 weeks. That does stretch the bounds of today’s medical technology, but maybe doesn’t exceed them. The Court’s Dobbs ruling will, of course, impact the Texas law if it goes one way. Or, the Court could uphold Dobbs, but say 6 weeks goes too far.

In any event, while the technology basis of Roe‘s threshold is strongly implied, it would be good if the Court in its ruling explicitly stated that the threshold depends on medical technology and can be moved toward conception as medicine increases its ability to sustain fetuses and bring them to term outside the uterus.

Rule Making and Rule Enforcement Pauses

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Commerce has a regulation, enacted in 2019 with effect last March (!), that

allows the government to block foreign telecommunication-gear imports and other business deals deemed a security threat[.]

There’s a clump of US businesses and trade groups that are pressing the Biden administration to “pause” enforcement while it

reviews the best path forward to working with industry on securing the [information and communications] supply chain[.]

There’s a larger problem here.

The objectors raise, entirely legitimately, let’s stipulate, concerns about this telecommunication-gear rule’s supposed excessive breadth of reach. However, willy-nilly cessations of enforcement just because this or that business or group gets a new administration to whom to object, is badly counterproductive. They are disruptive, they reduce predictability of the business environment impacted by that rule/regulation, and they raise the costs of doing business and through that costs to the end buyers.

If a business entity (or anyone else, come to that) has reason to object to a rule or regulation that’s in effect, that entity should take the matter up in a court of law. Appealing to the chief law enforcement facility—the White House—for selective enforcement is not the way to go.

Also: this is another reason for Congress to take back most of its delegation (of rule-making) authority to Executive Branch facilities, and enact—or not—its own, specific, laws that need very little rule making authority by unelected persons.

In the Land of YGTBSM

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Some of you may recall that a few weeks ago, Texas had several days of electricity (and associated natural gas) blackouts, some of those areas lost water for a number of days, and some areas lost Internet connectivity—and Internet-based communications—for some time.

A Wall Street Journal ran an article last week that looked into the sources of the electricity failures; it’s well worth the read in its own right.

A couple of items jumped out at me, though, concerning ERCOT, a State-level regulator about which I’ve written before.

The Electric Reliability Council of Texas activated a program that pays large industrial power users to reduce their consumption during emergencies. But the grid operator, known as Ercot, didn’t know who was being paid to participate in this program and what type of facilities were getting shut off, it has since acknowledged.

How is that possible? How can an entity that bills itself as a reliability facility not know who its members are or what types of facilities it might affect?

It gets better, though, regarding ERCOT’s member facilities.

“We do not know what type of facility it is,” said Kenan Ögelman, Ercot’s Vice Ppresident of Commercial Operations. “We do know [a facility] has qualified and performed to the requirement because we test them, but we don’t know what it is they do.”

How anything be tested if the testing personnel don’t know what [a facility] does?

ERCOT really has to go.

C Boyden Gray vs NASDAQ

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I know who should be winning. I know how the matter should be resolved.

Recall that NASDAQ wants to require companies, as a condition of being listed on the NASDAQ exchange, to have quotas of particular groups of Americans on those companies’ boards of directors:

“at least one director who self-identifies as female,” and “at least one director who self-identifies as Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, two or more races or ethnicities, or as LGBTQ+.”

And

Noncompliant firms must publicly “explain”—in writing—why they don’t meet Nasdaq’s quotas.

Gray’s and his colleague, Jonathan Berry’s, summary of their Comment filing before the SEC is spot on.

Nasdaq’s discriminate-or-explain rule is unlawful, unconstitutional, and unsupported by the evidence. Quota systems like this unjustifiably classify people by arbitrary categories of sex and race in violation of equal-protection principles, and the “alternative” of explaining why a firm won’t discriminate compels speech in violation of the First Amendment.

Yet, this is the damage the social justice warriors that infest our government at all levels would inflict.