Month: July 2023

Whether Doing So Will “Solve” the Affirmative Action Fallout or Not, Legacy Admissions Are Suddenly an Easy Target

As I reported earlier this month, the U.S. Supreme Court has ruled that “benign racism,” using a college applicant’s race as a “plus,” is no more constitutional than the strict quota system rejected in Regents of University of California v. Bakke, 438 U. S. 265 (1978).1 Among my initial comments on these decisions was the observation that “the individual decision-makers at universities and other institutions that favor affirmative action can do so without being concerned that it will cost them personally — others (today’s young people) are paying.”2

The defenders of affirmative action were already, and are now more, critical of “legacy” admissions, where schools give a plus not only to the descendants of previous graduates, but also children of donors and faculty members and also to potential athletes. See, for example, Star-Ledger editorial cartoonist Drew Shenemean’s column “Challenging legacy admissions in higher education.” (Subscriber exclusive) Anybody remember “varsity blues,” the prosecution of a number of wealthy (and not a few famous) parents who made “donations” so their children could be admitted to their preferred schools, sometimes supposedly as athletic recruits?

You are not going to find a defender of legacy admissions here. In fact, to the extent that children of faculty members are legacies, legacy admissions policies contribute to faculty defense of affirmative action, because they (or their children) will not have to pay for that policy.

Jay Bohn

July 31, 2023

  1. This is because, in part, as the Court observed, college admissions is a zero-sum game. There are only so many admitted to each elite university each year so plusses for some are necessarily minuses for others. ↩︎
  2. Borrowing of course from my earlier economic post about what I called the “SEP” problem. ↩︎

Fake Budget Deadlines Will Not Increase Transparency

In his column this morning, “Republicans are dead right about this secret spending by Democrats” (subscriber exclusive), Tom Moran bemoans the annual ritual of legislators’ slipping pet projects into the budget at the last minute (which is when it is always passed). Moran pushes what he says is an easy fix suggested by Peter Chen: require the legislature to present a draft budget by June 1. Chen says: “This would prevent lawmakers from waiting until the last minute to finalize and vote on a budget bill that they may or may not have read.”

I don’t believe it. Don’t get me wrong, I agree that it would be good to see a draft budget in advance. But if that draft is not subject to change, then we’re just moving up the deadline and, if it is subject to change, the last-minute goodies will be part of that change. While there are what I will call structural provisions that can help, they cannot guarantee good government.

In a democracy the only way to keep politicians in line is the threat of voting them out. This requires attentive voters with access to relevant information (the last part is – I thought – part of the role of a free press).

Jay Bohn

July 27, 2023

Whether They’re Substantively Right or Not, Legislators Rather than Bureaucrats Should Answer the Major Questions

There have been a lot of opinion pieces recently about Governor Murphy’s goal to reach net-zero emissions by 2050, how he’s going to achieve it, how much it will cost and who will pay for it. Here I’m going to concentrate on yesterday’s Star-Ledger/NJ.com guest column by State Senator Anthony M. Bucco, the Republican leader in the upper chamber.

In addition to his points about the expense of eliminating all use of natural gas1 and the lack of transparency of how the governor is going about it, is what Bucco asserts is a constitutional issue, the use of the Board of Public Utilities to impose this policy as an end-run around the Legislature. This brings to mind a point that I have made many times2 that too much power has been delegated to the executive branch and the debate over the appropriate extent of the dedication is not a procedural matter but whether the speaker approves the substantive decision that the agency has made.

I agree with Senator Bucco’s position that the substantive matter of whether natural gas should be abandoned as an energy source is a legislative rather than administrative matter.

Jay Bohn

July 24, 2023

  1. Bucco says:
    New Jersey customers will bear the brunt of the exorbitant upfront costs to replace their furnaces, stoves, and other major home appliances, especially in older homes. As such, New Jersey homeowners could face tens of thousands of dollars in sunk costs to retrofit or replace their existing systems, in addition to paying higher taxes toward overhauling the state’s electric grid to accommodate the greater demand that will be placed on it. ↩︎
  2. Start with The Misuse of Emergency Powers. ↩︎

Public Comment Rules Are Good, but Discourage Regulators from Doing Anything With Them

Yesterday NJ.com published an editorial, “Murphy and climate, on the clock,” which urges the rapid adoption of state regulations to push for more electric rather than gasoline powered vehicles. The problem, according to the editorial, is the time it will take the Department of Environmental Protection to respond to the comments that the proposed regulations are bound to receive. You see, administrative agencies must publish proposed regulations in the New Jersey Register and allow time for the public to comment on the proposal. At the time the regulations are adopted, the agency must respond to the comments received, most often rejecting any comments that advocate any significant change in the proposal.

Such rejection is not only because the agency is unlikely to change its mind about the best way to regulate, but because any substantial change would require a revised proposal and further delay in adopting the regulation. There is a similar requirement for adoption of municipal ordinances: two readings are required, with notice given between the two and a public hearing at the time of the second with any substantial change requiring the governing body to start over.

I don’t know the answer, but it is perverse that there is such a disincentive for the government to change its proposal in reaction to public comments.

Jay Bohn

July 20, 2023

State-Imposed Mandatory Retirement for Congress Will Not Work

A couple days ago I saw a story on AP.com about a ballot initiative in North Dakota seeking to prevent octogenarians from representing the state in Congress. According to the article,1 “No one who ‘could attain 81 years of age, by the end of their term could be elected or appointed to the state’s U.S. House or Senate seats, under the proposal.”

The proposal reminded me of the various state-level attempts to impose term limits in the 1980s and 1990s. In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the Supreme Court ruled that the states cannot impose qualifications for prospective members of Congress stricter than those the Constitution specifies.2

In addition to the evident unconstitutionality of such a prohibition, I do not favor substantive limits upon who the people can elect.3

Jay Bohn

July 17, 2023

  1. I could not find the actual text of the proposal, so I have to rely upon the article. ↩︎
  2. Term Limits was a 5-4 decision. Only Justice Thomas remains on the Court, and he dissented from the decision.) ↩︎

U.N. Vote Against Quran Burning Raises Free Speech Concerns

In the news yesterday was a vote by the United Nation’s Human Rights Council to adopt a resolution on “Countering religious hatred constituting incitement to discrimination, hostility or violence” by a vote of 28-12 with seven abstentions.1

This appears to be the actual text:

the Council condemns and strongly rejects any advocacy and manifestation of religious hatred, including the recent public and premeditated acts of desecration of the Holy Quran, and underscores the need for holding those responsible to account in a manner consistent with obligations of States arising from international human rights law; and calls upon States to adopt national laws, policies and law enforcement frameworks that address, prevent and prosecute acts and advocacy of religious hatred that constitute incitement to discrimination, hostility or violence, and to take immediate steps to ensure accountability.

The Council urges the United Nations High Commissioner for Human Rights and all relevant Special Procedures of the Human Rights Council, and treaty bodies within their respective mandates, to speak out against advocacy of religious hatred and to formulate recommendations on addressing this phenomenon; requests the High Commissioner to present at its fifty-fourth session an oral update on the various drivers, root causes and human rights impacts of religious hatred constituting incitement to discrimination, hostility or violence, highlighting gaps in existing national, legal, policy and law enforcement frameworks, to be followed by an interactive dialogue; decides to organise an interactive panel discussion of experts at its fifty-fifth session to identify drivers and root-causes and human rights impacts of desecration of sacred books, and places of worship as well as religious symbols as a manifestation of religious hatred which could constitute incitement to discrimination, hostility or violence. 

Source: Human Rights Council Condemns and Strongly Rejects Any Manifestation of Religious Hatred, Including Recent Public Acts of Desecration of the Holy Quran | OHCHR

Although religious hatred is bad, the requirement to “prevent and prosecute acts and advocacy of religious hatred that constitute incitement to discrimination, hostility or violence,” especially with the apparent specific intent of banning the burning of the Quran (Islam’s holy book)2 led the United States and the European countries on the council to vote against the resolution. The language is a bit vague, but I think it can fairly be read to call upon countries to ban the burning of the Quran, at least when that action is intended to be expressive, and I am willing to believe that is the entire point.3 One of the concerns expressed by Turkey with Sweden’s joining NATO was that Sweden did not prevent the burning of the Quran at a demonstration.

Inasmuch as the U.S. Supreme Court has ruled that that burning the flag of the United States is protected speech under the First Amendment4, I doubt that the United States could comply with that ban, even if it wanted to.

The resolution also raises the question of when it is appropriate to use the coercive power of the state to prevent conduct because it offends the religious sensibilities of some. It may be understandable to prohibit the burning of a book sacred to two billion adherents of Islam, but on what principled basis does the same government not prohibit the slaughter of cows, which is considered sacrilegious for Hindus?

  1. Here the breakdown of how the 47 member countries voted:
    In favour (28): Algeria, Argentina, Bangladesh, Bolivia, Cameroon, China, Cote d’Ivoire, Cuba, Eritrea, Gabon, Gambia, India, Kazakhstan, Kyrgyzstan, Malawi, Malaysia, Maldives, Morocco, Pakistan, Qatar, Senegal, Somalia, South Africa, Sudan, Ukraine, United Arab Emirates, Uzbekistan and Vietnam.
    Against (12): Belgium, Costa Rica, Czechia, Finland, France, Germany, Lithuania, Luxembourg, Montenegro, Romania, United Kingdom and United States.
    Abstentions (7): Benin, Chile, Georgia, Honduras, Mexico, Nepal and Paraguay. ↩︎
  2. I am more used to seeing the term spelled “Koran.” Perhaps it’s a transliteration change; I do not mean to make an issue of the spelling. ↩︎
  3. I am certainly no expert, but at least one source indicates that when a copy of the Quran is worn, burning is an acceptable way to dispose of it, just like burning a worn U.S. flag is an acceptable means of disposal. ↩︎
  4. Texas v. Johnson, 491 U.S. 397 (1989). ↩︎

Convenience a Legitimate Argument in Favor of Self-Service

Every couple of years a play is made to end New Jersey’s ban on self-service gasoline. The current discussions seem to arise from Oregon’s recent decision to end its own ban, leaving New Jersey as the only state to prohibit drivers from pumping their own gas.

I first saw the recent contretemps in Paul Mulshine’s column last week “New Jersey’s arguments against pumping your own gas are self-serving.” That column is worth a read.

Of course, there is opposition to that view, often expressed as “I don’t want to, so it should be prohibited,” as reflected in a letter to the editor of the South Jersey Times by Denise Brush of Glassboro, who was “very offended” by Mulshine’s column and found the idea that “everyone in New Jersey should be allowed to pump their own gas . . . insulting to those who can’t do so, or would rather not.” (Yes, it can be very upsetting to find that other people have views different from one’s own. I face that problem constantly.) She makes the point that she avoids stores with self-checkouts.

Most recently Drew Sheneman, a cartoonist/columnist with whom I usually disagree, advocated for self-service in his confusingly titled editorial “Self-serve gasoline is a fate worse than death.”

Although I first moved to New Jersey some 35 years ago, I started driving in a state that had self-service and still travel through such states (i.e., everywhere but New Jersey) on occasion. Pumping your own gas is not hard and as Mulshine points out, the training requirement is not onerous. When I first arrived in New Jersey I felt funny staying in the car while someone served me.

I really don’t expect that allowing self-service will have a great effect on prices, especially if gas stations are required to provide full-service to those who want it at the same price. What I want is the convenience of not having to wait for the one attendant for all the pumps to get to me given all the other customers who happened to pull in just before me or the other duties that the attendant has. I also use the “scan and go” of Sam’s Club’s app to avoid even the self-serve checkout line.

Jay Bohn

July 10, 2023

Initial Thoughts on the Affirmative Action Decisions

A week ago the U.S. Supreme Court issued its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (and its companion case, Students for Fair Admissions, Inc. v. University of North Carolina) wherein it held that the schools’ admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. Predictably there has been much wailing and grinding of teeth from those who favor the use of racial quotas to ensure that every governmental organization, college class, or other group “looks like America,” as that is, apparently, a requirement if ours it not to be a racist society.

The various opinions are well over 200 pages in length, and I have not finished reading them, so I will refrain from extensive commentary for the moment. There are however, a few points I want to make:

  • Spots in a class at Harvard and UNC are a limited commodity for which there is a great deal of competition.
  • The two takeaways from the Court’s fractured decision in Regents of University of California v. Bakke, 438 U. S. 265 (1978), were that while a strict quota system reserving a specific number of spots was not permissible, schools could use the applicant’s race as a “plus” factor
  • College admission is a zero-sum game; for every student admitted as a result of the “plus,” another is denied for that reason.
  • The “plus” is thus significant in two ways: it is both important for indivdual decisions and can greatly influence the result.

I am left with the abiding sense that the “plus” as used by these schools is really a quota by another name; they do not want substantially fewer minority applicants than the prior class: each class must “look like America,” so the plus factor is made whatever it has to be to reach that goal.

As a final comment, the individual decision-makers at universities and other institutions that favor affirmative action can do so without being concerned that it will cost them personally — others (today’s young people) are paying. Would their position be different if say tenured professors were discharged to create spots so that the faculty could “look like America”?

Jay Bohn

July 6, 2023

Batting .500 in Supreme Court Decision Prediction

Last November I wrote about the Northern District of Texas’ ruling in Brown v. U.S. Department of Education which found President Biden’s student loan forgiveness plan unlawful. In order reach the point where it could issue a decision on the merits, the court had to conclude that the plaintiffs in that case had standing to bring the suit in the first place, which was a problem other opponents of student loan forgiveness had not been able to overcome. I believed that the Brown plaintiffs also had not established their own standing and it was my expectation that the decision would be reversed on that basis by the Fifth Circuit.

The court of appeals never got the chance to decide the case because the Supreme Court issued a rare writ of certiorari before judgment so that it could review the decision in conjunction with Biden v. Nebraska, a case in which the Eastern District of Missouri had ruled that the six plaintiff states in that matter – Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina – did not have standing but where the Eight Circuit nevertheless issued an injunction against the program pending appeal.

I firmly believed that the Supreme Court would find that neither set of plaintiffs had standing, which would render the student loan forgiveness program unreviewable.

Well, I was half right. Justice Alito wrote a unanimous opinion in Brown which rejected the plaintiffs claim of standing and so vacated the district court’s decision and remanded with directions to dismiss the case.

However, in Biden v. Nebraska the Court (by a vote of 6 to 3) held that Missouri, at least, had standing to bring its challenge. On the merits the Court, by the same vote, ruled that the HEROES Act does not give the Secretary of Education the power to create the broad-based student loan forgiveness program,1 a position with which former House Speaker Nancy Pelosi once noted her agreement.

  1. I have not had the opportunity to read either Brown or Biden v. Nebraska in full (lots of opinions were issued in the last couple of weeks.) ↩︎