is older than it's ever been and now it's even older


SCOTUS update II

Last week I posted brief outlines of the Gratz and Grutter affirmative action decisions; they were landmark decisions that will be important for years because they will be part of the academic life of the nation for the foreseeable future. The decision in Lawrence v. Texas will be remembered for another reason-- if you are not a homosexual, this decision will likely not ever directly affect you. But if you are, this decision is as groundbreaking as Brown v. Board of Education, (a comparison I do not lightly make) because for the first time the Supreme Court has ruled that "[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." In other words, the police power of the government can no longer be used to stigamatize people on the basis of their sexuality.

The decision itself is not impressive except rhetorically. Anthony Kennedy, the author, is not attempting to write a decision that will be used as a springboard for further explorations of homosexual rights. The standards of review I mentioned in the last post? Barely mentioned. One sentence close to the end of the decision tips the reader off: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." This indicates that the Court is using rational basis review-- the lowest rung of the decision ladder. A curious thing has thus happened with the landmark cases of last week. Strict scrutiny is posed and overcome in Grutter, and rational basis is used to invalidate the law in Lawrence. While a rational basis "with teeth" decision is more common than a law surviving strict scrutiny, neither happen very much. I hesitate to speculate, but I sense a possible subtle shift in the Court's approaches to its standards of review for constitutional issues, and the next few years will be instructive.

In the meantime, let's celebrate the overturning of one of the worst decisions of the modern era: Bowers v. Hardwick. You may recall it made my August 2001 list of worst Supreme Court decisions ever. And now it ends. Bowers purported to find that there is no constitutional protection for sodomy, which is obviously not what a case like either Bowers or Lawrence poses. The question is rather what interest should the government have in what consenting adults do in the privacy of their own home? The answer is, essentially, none. Finally.
The link portion

Is Free Will a fallacy? This philosopher thinks so. I can't agree with him, however, because the fundamentals of choice are a cornerstone of society. Even if we can't completely control our desires, we must act like we can so that we remain in a functioning social compact. Taken to their logical extreme, the implications are truly staggering. No law, no prisons, absolute license.

Ok, so having some fundies in the high-up government concerns me. Fine. But if Ashcroft anoints himself with oil upon taking a new job in a Jesus-by-way-of-Napoleon coronation gesture, why does he use Crisco? I mean, why not a high quality olive oil?


SCOTUS update I

The Gratz decision, just issued this week, is the decision on the Michigan undergraduate case, which used the complicated number grading system for admission, and gave an extra 20-point bump to “underrepresented communities.” To understand this ruling, one needs to get the standard of review the Court used. The Supreme Court has staked out standards of review in many prior cases. They basically fit into three categories:

  • Rational Basis review. This is the most deferential standard that a court uses to interpret a law. It means that if the law has a rational basis in advancing a permissible state interest then the law stands. Most cases get viewed under rational basis review unless some triggering interest bumps it up to a different level. Dealing with a “suspect class,” usually defined as a classification based on something that you can’t change will get you kicked up to a higher standard of review based on the Equal Protection clause or the Due Process clauses of the 5th (federal government) or 14th (state governments) amendments.

  • “Intermediate scrutiny.” I put this in scare quotes because there never really has been a consistent label put on this. It is a middle category for, mainly, gender cases, where the suspect class is the gender of the claimant. A good example of intermediate scrutiny would be the standard that the SCOTUS used in the VMI case a few years back, invalidating the state support for an all-male service academy without any sort of female version of it that got the same type of support.

  • Strict Scrutiny. This is an almost impossible standard of review for a law to survive. If it’s getting strict scrutiny then the law must demonstrate that it has been (two-part standard) narrowly tailored to further a compelling state interest.

So what happens in Gratz is that the court decides that it is a strict scrutiny question, and that the policy is not narrowly tailored for a compelling state interest.

Back in 1978, the much-hyped Bakke decision was issued with a wishy-washy holding. Powell, writing for the majority, said that quotas were bad and unconstitutional. Yet, he said, race as a factor in admission “could be” a compelling state interest. Which would get the school past the second part of the strict scrutiny test. In fact, the court in Gratz more or less ruled that way. But Rehnquist, in writing for the majority, says that the use of the point-based weighting system is inherently a racial classification and an open-ended one. So while getting a diverse student body may be a compelling state interest, the point-based weighting system is too blunt an instrument to further the objective. I get the idea in reading the decision that the thing that Rehnquist is most uncomfortable with is the idea that people can get in or not based on group classifications and not on individual merit:

Even if student C's "extraordinary artistic talent" rivaled that of Monet or Picasso, the applicant would receive, at most, five points …. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA's system does not offer applicants [an] individualized selection process …

So this is the part that people are going to mis-understand for years: the Court is not saying that an affirmative action plan is per se unconstitutional. It’s saying that an affirmative action plan that is sufficiently individualized to perhaps give some sort of bump-up to a minority applicant could be ok, as long as it doesn’t disadvantage another group or cause people to get in or not get in based solely on their membership in a group. The funny thing is that is basically the same thing that the court said in Bakke.

The Grutter decision is the one that has gotten more attention this week, with good reason. It is a Big Deal.

The court (O'Connor opinion) decides that this policy presents a strict scrutiny question but then upholds it. That's pretty revolutionary. I've only read two cases before that did that, including Korematsu. The Court itself only cites two (one that I'm not familiar with) cases directly to refute the idea that strict scrutiny isn't an automatic death sentence for a law; that itself tells you something. When a court wants to support a controversial point of law, they usually cite the hell out of it. They couldn't because surviving strict scrutiny is big news and doesn't much happen.

So the policy survives. Why?

1. The court ruled that educational diversity is a compelling interest. Not may be, but is; they specifically rule that the court ought to defer to the judgment of educational professionals on this point. Big news, and IMO mostly good news. The court, in reaching that conclusion, gives substantial weight to amicus briefs submitted by industry and military employers that argue that promoting diversity is a Good Thing.

2. It finds that a nondeterminative racial preference system is not a quota system. That's big because it avoids the Bakke prohibition on quotas and helps it over the "narrowly tailored" hurdle. It also allows the Court here to distinguish the law school admission plan from the one overturned in Gratz.

3. It ruled that the plus-factor system used here did not hurt any other group, namely honkies. So the Court finds that the system is individualized and not based on group acceptance, and therefore is ok.

More to come, including my analysis of the brand new decision overturning Texas' sodomy laws.


Adventures in Duluth

I have now spent three weeks in Duluth. Duluth is an extremely interesting city, and one that barely registers a blip on the consciousness of people in the U.S. (and none outside it, I would wager). As this site explains:
In 1869-1870 Duluth was the fastest growing city in the country and was expected to surpass Chicago in size in only a few short years. When Jay Cooke, the wealthy Philadelphia land speculator, picked Duluth as the terminus of the Northern Pacific Railroad and the Lake Superior and Mississippi Railroad, Duluth's Future appeared very prosperous. Unfortunately, Jay Cooke's empire crumbled and the stock market crashed in 1873 and Duluth almost disappeared from the map.

Duluth survived based on lumber and ore shipping, and it is now a gorgeous little metropolis of about 100,000 nestled on a steep hill that plunges down to Lake Superior. It is a town where you still hear the ore boats' horns as they leave port, and the lighthouse is always on at night. The architecture is impressive, the people are nice, and the traffic is so much better than the Twin Cities. But let's not kid ourselves. Duluth is also the coldest major city in the US (this site says it's second, but International Falls has a population of around 16,000 while Duluth and its sister city of Superior together have a population of around 250,000); while Maggie is sweating in the Twin Cities in temperatures around 90, Duluth is struggling to get into the 70s. Most days I go home and put on a sweater and the winters are, understandably, brutal.

So, without my dog and wife, I have been working long hours and doing some exploration. I've found a few places to do some trout fishing, I've gone to some parks, and I've located some interesting food (including a Thai place, Thai Krathong, that is surprisingly outstanding, if a little shy with the spiciness). I'll try to keep that angle updated throughout the summer.

And I've been working at Hanft Fride, a law firm, that is treating me very well and getting me interesting work. It's been a great experience so far, even if I am a little homesick. So write, call, whatever.


If there is justice, the business about Bush's lies to America and the world will not go forgotten. Tony Blair is certainly not getting a free ride, so let's hope that our administration doesn't either. I was once impressed by Colin Powell but his true colors were revealed, I'm afraid, by the way he was willing to be Bush's hatchet man at the UN despite the fact that he knew he was peddling lies and half-truths. Bush's latest line is that the missing weapons of mass destruction were looted, which might be laughable except that it's not. But enough about politics...

Roger Ebert was involved in a very funny spat with a writer-director over an entry in the Cannes film festival. This is Ebert's response to the brouhaha. It's funny.

And finally, the slug that changed tort law forever.

Tomorrow: my take on the recent Supreme Court affirmative action rulings.


He's Gone

From my email inbox this morning:

June 16, 2003

From: Fred W. Fields, Chair, Lewis & Clark College Board of Trustees

To: Faculty, Staff, Students, Alumni and Friends of the College

President Michael Mooney has delivered his resignation to me. Dr.
Mooney will continue in his role as President until August 31, 2003,
at which time he will become President Emeritus and a professor of the

Dr. Mooney has worked for the betterment of the College for 14 years
and his achievements have had a lasting and positive impact on the

Dr. Mooney has taken responsibility for making a large, as-yet
unrepaid loan to an environmental technology company. In light of his
remarkable and exemplary performance over 14 years, the Board
previously declined to accept his offer of resignation over the loan.

Dr. Mooney's resignation is not the result of any new information.
Rather, it reflects his recognition that the College will be better
served by a President who can focus full attention on the future of
the College, as Dr. Mooney has been able to do for the last 14 years.

During his tenure as President, Dr. Mooney earned a yearlong
sabbatical, which he intends to begin this fall.


For Shame

My alma mater, Lewis & Clark College, is embroiled in a shameful scandal not unlike some of the corporate malfeasance in the news of late. Its president, Michael Mooney, admittedly made a secret loan of over $10 million using school endowment funds to an Idaho company that promised to be able to convert useless waste oil into valuable diesel fuel. Among the salient points of this scandal:
  • The Board of Trustees did not know of the loan, in violation of school rules

  • The loan was for more money than the school’s rules allowed

  • The company did not meet credit standards for the school

  • Mooney personally invested in the company in probable violation of SEC insider trading rules

  • Michael Mooney is not being removed for this. In fact, he is not even being disciplined.

Of course, none of this would probably have come to light except that the company in question did not pay back any of this loan and upon being sued by the school, filed bankruptcy. The school will never see the money again.

I cannot say how dismayed I am by this. The value of an undergraduate education is largely the prestige value of the name of the school. From this point on, in job interviews I will be forced to defend my alma mater as not being simply a place where the president is a crook and Monica Lewinsky failed to graduate. I wasn’t a huge fan of Mooney anyway; he was always known for his smarmy fundraising and his penchant for relentless construction (he even refused to halt pile-driving for the new library during finals my sophomore year, my previous reason to not pony up any cash for the alumni fundraising) yet this truly takes the cake. Fellow LC alums: write a letter (I’d recommend to the Board of Trustees, 0615 Palatine Hill Road, Portland, OR 97219), make some noise, help me fight the tarnishing of the Pioneer name! Mooney must be brought down.

How bad is this? Well, the school has known about this since last November but covered it up until now, so that school would be out and the dirty campus agitators would not be able to protest. They announce it at the beginning of the summer so that the outrage will blow over and when the students return, they will forget about it (Portland's elites certainly don't seem to care). I won't forget this, and neither will the alumni who are asked to contribute their cash to future Ponzi schemes. This is unconscionable.

The Board sent this lame apology for his conduct:

June 4, 2003


(Portland, Ore.) - Lewis & Clark College's Board of Trustees today
reaffirmed its support of College President Michael Mooney's
leadership of the 136-year-old institution. "Michael Mooney's
leadership has helped Lewis & Clark College grow both academically and
financially during the past 14 years," said Fred Fields, chair of
Lewis & Clark's Board of Trustees.

Mooney has acknowledged that he made a serious mistake in judgment in
2001 when he authorized a one-year loan of $10.5 million to an oil
recycling company. The funding, from the College's short-term
investment fund, did not come from the College's endowment or funds
budgeted for operations. The transaction did not and does not impair
the College's essential operations. Vigorous steps are being taken to
recover the assets from the company, which is now in Chapter 7

"We learned a difficult lesson through this transaction," said Fields.
"But, we have reviewed our policies and practices and, as a result,
our management has been tightened. We also took a close look at
Michael Mooney. After investigating the incident thoroughly, we
concluded that he made an error in judgment and that this was an
isolated incident. We have reaffirmed our support of his leadership."

As a result of the incident, the College and the Board of Trustees
took steps to ensure the highest standards of business practice,
oversight, and accountability in the future. Among the steps taken:

* The Board thoroughly investigated the transaction and the role of
the president
* Members of the Board, along with President Mooney, have met with
members of the campus community to inform them about the
* The Board reconstituted its audit committee as a standing committee,
separate from its finance committee
* The Board charged its audit committee with undertaking a regular
review of the College's financial policies and procedures
* The Board charged its finance committee to oversee short-term
* The Board, in collaboration with the College administration,
instituted a review of the structures, staff, and operations in the
Business Office
* The College has brought a new Vice President for Business and
Finance on board.

On May 16, the Board approved a balanced budget for fiscal year 03-04
of $92.8 million. The academic quality of the class of 2007 is the
highest ever. "The College's financial health and its core academic
values remain unchanged. We applaud the quality of student learning
and faculty excellence that are hallmarks of this institution," said

And here's what I sent as a response:

As an alumnus of Lewis & Clark College, I am deeply disturbed by this news and particularly that the Board of Trustees has not seen fit to take any disciplinary action against Messrs. Mooney or Brockett. I consider this a profound black eye against my academic record and I am particularly concerned with it as it diminishes the quality and prestige of my degree. Under no circumstances will I so much as think about sending a dime of my money to the school. I have no assurances that it won't go to some harebrained scheme without any checks and balances. Mr. Mooney is, in my estimation, a common criminal and I am sickened that the college won't get rid of him. For shame.

Nathan Hobbs '97

p.s. My wife and two of my best friends are also alumni of Lewis and Clark; we're all upwardly mobile people and this decision will undoubtedly cost you fundraising for years to come. Please reconsider your decision to stand by this crook.