Tag Archives: rights

Race-Based Admissions at UNC

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The University of North Carolina, Chapel Hill, is under fire and in the courts over its fundamentally racist admissions policy.  Plaintiffs are arguing that UNC violates Supreme Court rulings by giving too much weight to applicants’ race. The problem, though, is that any weight to race is too much, is fundamentally racist.  The Supreme Court’s rulings don’t go far enough to bar this behavior.  As things stand, though, the plaintiffs have a case IMNSHO.

UNC admissions readers frequently highlight the applicant’s race, citing one reader’s comment that even with an ACT score of 26, they should “give these brown babies a shot at these merit $$.” Another reader wrote, “Stellar academics for a Native Amer/African Amer kid,” the plaintiffs said.
Steve Farmer, the university’s vice provost for enrollment and undergraduate admissions, said in response: “Language in this exchange does not reflect Carolina’s values or our admissions process.”

Farmer is being disingenuous. The language clearly reflects both UNC’s values—emphasizing race as they do—and that language equally clearly reflects the fact that UNC does use race emphatically in its admissions process. The notes are right there on the applicants’ forms.

UNC says it has studied race-neutral approaches to admission for many years….

The only race-neutral approach possible for admission—or for any other purpose anywhere—is to not consider race at all. Any inclusion of race (or gender, or…), even as a “plus” factor, necessarily segregates in favor of one group at the direct expense of another.

If UNC truly wanted diversity, it would achieve it by admitting the best students regardless of race, or ethnicity, or gender.  The resulting student population would be a microcosm of the underlying population from which it was drawn.

If that didn’t produce a diversity reflecting the more general population, the correction would not be to play race games with high school graduates, it would be to commit university personnel and resources to improving the K-12 education so those high school grads would more closely reflect the underlying demographics.  And to press other universities and colleges to do the same.

But that would take actual work and dirty hands, not virtue signaling.

Talk and Sovereignty

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French President Emmanuel Macron has embarked on a “debating tour” of France in response to the uproar surrounding his gas tax increases, decision to impose from the center a “carbon free” economy on France, and the yellow vest demonstrations against first the tax increases and subsequently in broader opposition to that overweening centrality of governance.

And Macron laid bare his basic misunderstanding of his own political environment and of the nature of French sovereignty.  He’s already met with 600 mayors in Normandy, and there he laid out his basic tenets.

Macron said he was there to hear the concerns of the French and promised that the questions raised by the citizens would be given consideration.

Given consideration.  But no commitment actually to answer those questions satisfactorily to “the citizens.”  And this:

We won’t agree on everything, that’s normal, that’s democracy. But at least we’ll show we are a people who are not afraid to talk, exchange, and debate[.]

Talk, exchange, and debate.  Chit-chat, not action.  We’ll put on this show, though.

And who is this “we” that won’t agree on everything?  Disagreement among the citizens is, indeed, the stuff and core of democracy.  But government?  Government has nothing with which to agree or disagree; that’s a non sequitur.  Government has only to obey the instructions of its employers, those citizens.

Or does the French government (not only Macron, and not only the present administration), the head of a legal system one of whose basic tenets is that the burden is on a government-accused man to prove his innocence rather than on the government to prove his guilt, conceive that the people work for the government and not the other way around?

Not even Rousseau went that far.

Privacy in a Technological World

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In a ruling rejecting an application for a search warrant, Magistrate Judge Kandis Westmore, operating in the Northern District of California, had this remark in particular.

Citizens do not contemplate waiving their civil rights when using new technology, and the Supreme Court has concluded that, to find otherwise, would leave individuals “at the mercy of advancing technology.”

Encouragingly, this remark also cited (via the quote in the remark above) a Supreme Court ruling, Carpenter v United States [citations omitted]:

We have kept this attention to Founding-era under-standings in mind when applying the Fourth Amendment to innovations in surveillance tools.  As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home.

The Founders wrote our Constitution to be technology agnostic, and in fact there is no mention of technology qua technology in it.

Westmore’s ruling can be read here. Carpenter can be read here (it’s long).

The Paranoid Hysteria of Progressive-Democrats

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Presumptive Progressive-Democratic Party primary candidate for President in 2020 Congressman Eric Swalwell (D, CA) (who already has touted the use of the government’s nuclear weapons against any who disagree with his wish to limit our ability to keep and bear arms) is a core example.  The question, he says,

has “shifted” from “whether the president is working with the Russians” to “what evidence exists that the president is not working with the Russians?”

Because guilty on proof by Swalwell’s say-so.

And

I think that an unwillingness to sit down with the special counsel demonstrates a continued effort to obstruct and delay the inevitable[.]

Because no man—not even a President—has an obligation to cooperate with an investigation of that man.  Oh, wait—yes, he does; Swalwell says so.

And

“now we know” the notes from the 2018 summit in Helsinki have been “effectively destroyed” by the president.

Because a newspaper said so.

If Donald Trump took them, as the Washington Post story states, then they’re effectively in the hands of the subject and, you know, I don’t trust Donald Trump to turn them over.  We actually know in the past that he’s known to just rip up important pieces of paper and destroy them—notes that are important for presidential records. There’s been reporting on that. So, I see it as we have no way of obtaining the physical evidence now other than getting it from Donald Trump, someone who’s been wholly uncooperative.

It’s been reported.  What more proof is needed?  Well, here’s more: Swalwell doesn’t trust the President.  There it is.  Never mind that not even in that newspaper evidentiary story was there a claim that Trump had destroyed anything.

Can our nation—already harried by the identity politics and divisiveness of the Progressive-Democratic Party—afford such irrationality in the White House?

A Magistrate Judge Gets One Right

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Of course, the Magistrate Judge Kandis Westmore’s ruling can be overturned on appeal by a District judge in the Northern District of California in which she operates, or on appeal on the ruling’s way up the appellate chain.  Nevertheless, her ruling stands, for now.

In its essence Westmore ruled that, even with an otherwise valid search warrant, a person cannot be compelled to unlock a digital device like a cell phone with that person’s biometrics—a fingerprint, a face, or an iris, for example.

There was a technicality that itself would have invalidated the warrant: it was overbroad.  It requested authority to unlock and search any device found inside the otherwise legally searched premises, including those owned or controlled by anyone happening to be present at the time of the search, and Westmore found that request to be neither limited to a particular person nor a particular device as the 4th Amendment requires.  That’s a 4th Amendment failure of the warrant.

The larger principle, though, flows from a 5th Amendment bar against forced self-incrimination violation. Westmore ruled that biometrics, when used in the context of a search—vis., to unlock a personal digital device—is no different from a personal passcode, and personal passcodes have already been ruled inaccessible to the government, even with a search warrant.  That would be forced testimony against oneself.  The owner of the device must voluntarily give up the passcode, and he cannot be “compelled” to volunteer [citations omitted].

The Court finds that utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. …the Government concedes that a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. In this context, biometric features serve the same purpose of a passcode, which is to secure the owner’s content, pragmatically rendering them functionally equivalent.
…
It follows…that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.

And especially this, as I’ve argued elsewhere.

That the Government may never be able to access the complete contents of a digital device, does not affect the analysis.

Government convenience must never be allowed to override the individual liberty of an American.

In the end,

The Government may not compel or otherwise utilize fingers, thumbs, facial recognition, optical/iris, or any other biometric feature to unlock electronic devices.

It matters when, and why, biometrics are used.  The outcome here, should it survive appeal, is a stout blow in favor of individual privacy and a firm limit on Government’s authority to invade an American’s person[], houses, papers, and effects.

The magistrate judge’s ruling can be read here.