The distinction is remarkably subtle, and will likely be missed by many despite their best efforts to understand it. They may be able to parrot the words, but they just wont be able to wrap their heads around Harvard prof Jeannie Suk Gerson’s message: The trial is not about affirmative action, but whether Harvard discriminates against Asians. But does this distinction make a difference?

The question that remains for trial is whether Harvard has gone beyond what the Supreme Court has said are permissible ways to consider race in admissions—and, specifically, whether it has shown a special bias against Asian-American applicants.

Affirmative action can be best characterized as “merit plus” with the goal of achieving a more diverse student population in the belief that diversity of race, gender, nationality brings different perspectives to education, which is inherently beneficial for all. Some agree. I do. Others don’t. But that’s not the case on trial. Continue reading →

Upon arriving at the border, either alone or with their parents, children from abroad are placed in the care of the Office of Refugee Settlement. Until June 20 of this year, those minors who arrived with their parents were still marked by the government as “unaccompanied” because of the administration’s policy of separation at the border. Thus, the parents’ cases were put on a separate track, leaving the children. some as young as 2, alone as they went through the immigration system.

Of course, as many of the parents were deported – very few have a chance in hell without an attorney that they’re not entitled to – many kids were left behind. Separation at the docket is more accurate than separation at the border. What could compound this problem? State judges granting parental rights to foster parents stateside while not having a damn clue what’s going on with the biological ones:

Alexa’s case began in November 2015 under the Obama administration, years before Trump’s family-separation policy rolled out. Her 15-month separation from her mother exposes the fragile legal standing of children under the care of the federal Office of Refugee Resettlement and a flawed, piecemeal system that can change the course of a child’s life. Continue reading →

Can you blame UC Santa Barbara for trying its darndest to comply with the demands of the “Dear Colleague” letters, their “questions and answers,” the cries of anguish emanating from the Obama Department of Education, Office of Civil Rights, not to mention the unlawful threat of withholding federal funds should they not? Well, yes, you can.

Due process – two preeminent words that are the lifeblood of our Constitution. Not a precise term, but most everyone knows when it is present and when it is not. It is often most conspicuous by its absence. Its primary characteristic is fairness. It is self-evident that a trial, an adjudication, or a hearing that may adversely affect a person’s life must be conducted with fairness to all parties.

Here, a university held a hearing to determine whether a student violated its student code of conduct. Noticeably absent was even a semblance of due process. When the accused does not receive a fair hearing, neither does the accuser.

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A friend, who also happens to wear the hat of a local elected official, was troubled. He asked my thoughts, as he went through some old local laws to determine which had overstayed their welcome. One law, he explained, was clearly unconstitutional, but his colleagues strongly resisted dealing with it. It was an old law. It had been around a long time, and it had proven a useful law. It has never been tested in court.*

“But it’s unconstitutional,” he emphasized. A lot was taken for granted over the years,. Laws that served people well given social norms of the time, were so deeply embedded in our understanding of what was acceptable that subsequent changes in technology, norms and sensitivity toward the chilling of free speech had no impact.

The Texas Court of Criminal Appeals faced such a challenge to its harassment law, Penal Code § 42.07. Everybody knows harassment is wrong and a crime. How could it not be?  Continue reading →

Is it not a person’s right to gripe about the unfairness, the impropriety, of a traffic stop on Facebook? Of course it is. This is America, and right or wrong, we get to complain about whatever we want to complain about.

Shortly after he was pulled over by a Kentucky State Police trooper on Sept. 16 near his home in eastern Kentucky last year, David Gabbard said he wrote a Facebook post sharing his anger at what he felt was an illegal stop.

“Just love being pulled over for no reason lmao. #maybenexttime. #policeharasment (sic),” the post read.

In the scheme of complaints about cops, this was about as tepid as it gets. But it was apparently harsh enough to infuriate the cop who nabbed him. Continue reading →

Over the course of our history, we’ve sought to create fair processes to achieve fair outcomes. The problem, of course, is that no matter how fair the processes, it seems the outcomes are never quite what some demand. If women comprise 51% of the population, for example, they should comprise 51% of corporate CEOs and board members.

It makes perfect sense, provided you ignore a multitude of factors that could explain why that hasn’t happened and focus instead on the one explanation that you want it to be: sexism. To consider any other factors would likewise be sexist, since sexism has been pre-ordained as the cause of this disparate outcome. So the obvious and expedient solution is to socially engineer corporations to mandate the outcomes that they should have but for sexisim. After all, sexism is wrong, so this has to be right.

David Lorimer has raised the question in the legal context, having written an “as yet” unpublished paper calling for the elimination of juries in rape cases. The problem is that juries aren’t convicting as many “acquaintance rape” defendants as they should. Continue reading →

In Portland, a march and vigil was held for Patrick Kimmons, who was shot and killed by police after he allegedly shot two people and pointed a gun at the police.

The group, which included members of Kimmons’ family, gathered near a memorial supporters have set up near Southwest 4th Avenue and Harvey Milk Street, at the parking lot where the shooting occurred.

“We’re not here to riot. We’re here for justice,” said Charles Kimmons, a family member. “We need to fight this all the way to the end. These cops need to be locked up.”

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Almost immediately after the confirmation of Kavanaugh, the Federalist demonstrated its utter gracelessness by calling for a defamation suit against Christine Blasey Ford and the Washington Post. Not only would the suit be politically ridiculous, but it reflected the absolute worst of faith by the extreme right.

Former Astronaut Scott Kelly was possessed of a bigger spirit. He twitted:

One of the greatest leaders of modern times, Sir Winston Churchill said, “in victory, magnanimity.” I guess those days are over.

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The word going forward will be “legitimacy,” as the Least Dangerous Branch has only one real arrow in its quiver, that it possesses the trust of a nation. And as my former Fault Lines writer, Cristian Farias, contends, “Kavanaugh’s Confirmation Shreds the Pretense of an Apolitical Supreme Court.”

On the eve of Brett Kavanaugh’s confirmation to the Supreme Court, not long after Senator Susan Collins offered the apologia that clinched his elevation, Justice Elena Kagan was asked how she and her colleagues managed to find comity and stay above politics — even at a time when Washington was burning with partisan rage over the soon-to-be newest member of the institution she loves.

Kavanaugh and the ugly politics of his nomination remained nameless, but Kagan all but conceded that with him on the Court, and Justice Anthony Kennedy gone, things won’t ever be the same. “Part of the Court’s strength and part of the Court’s legitimacy depends on people not seeing the Court in the way people see the rest of the governing structures of this country now,” Kagan said at a Princeton University event celebrating, of all things, the contributions of women to that institution. “In other words, people thinking of the Court as not politically divided in the same way, as not an extension of politics but instead somehow above the fray.”

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Philadelphia District Attorney Larry Krasner is an experiment playing out before our eyes. Whether the experiment will work, or work out as well as hoped, has yet to be seen, but it’s become clear that Krasner, a former criminal defense lawyer, is the real deal. He’s kept his word, made hard calls and, for better or worse, held true to his word. He’s a reform prosecutor.

This didn’t sit well with Court of Common Pleas Judge Anne Marie Coyle, who had a fairly pedestrian probation violation case before her where the defendant was rearrested. She expected the prosecutor to prosecute, to seek the defendant’s probation to be violated in advance of his conviction for the new offense.

The case involves defendant Demetrius Mayfield, 26, who has a long rap sheet and who was charged in 2016 with gun and drug offenses. In May, he pleaded guilty under a negotiated deal to a felony charge of possession of a firearm prohibited by a felon. Coyle sentenced him to 11½ to 23 months in jail, followed by probation. With credit for time served, Mayfield was immediately released from jail. He was prohibited during probation from being in a home or vehicle with drugs or guns. Continue reading →