Begging The Question

Friday, April 09, 2004

A Question For Originalists
I don't know if any originalists read this blog, especially late on a Friday afternoon, but I was curious about something, not subscribing to that particular philosophy of constitutional interpretation. So, a question or two.

Is there anything that an originalist interpretation of the constitution tells you is constitutional, but that you're against anyway, say as a matter of policy, or that you'd vote against as a legislator?

I'm sure the opposite happens from time to time. That is, the originalist view is that something like using thermal imaging of a home without a warrant or letting a child testify against an abuser via closed circuit television is unconstitutional, but the originalist might prefer a world where those things could happen. It's sort of a "darn our intellectual consistency" thing. But I'm curious if things go the other way as well. I don't doubt there are such things, but I'm having a hard time thinking of them, and you don't hear about them too often. I suppose the death penalty might be one: the originalist view is that it's constitutional, but some originalists might be against it. But right off the top of my head, I can't even say I've ever heard anyone say that.

In case you're thinking of accusing me of adopting a philosophy of constitutional interpretation that conviently coincides with all of my policy preferences, I can think of a few things that would fit this rubric for me. For one, the death penalty. I think that, at least in some form, the constitution permits the death penalty, but I think it's a bad idea. I don't want to get into a big Second Amendment thing, but I think I would like more gun control than is probably constitutional. And, in a case in which I disgareed with the ACLU position, I think the constitution allows the Boy Scouts to exclude folks like James Dale. And while I guess I'm not against that as a constitutional principle of free speech and free association, I think it's a bad thing that the Boy Scouts actually exercise that right.

I know we're not talking about me, but I wanted to give the originalists a show of good faith here. Also, are there different originalist views of what is and isn't constitutional? I find that the originalists tend to portray their interpretations as the only legitmate view, so I'm curious if there is disagreement among those who pore through Madison's journals and Blackstone's commentaries for the one true vision of the original meaning. For example, do some originalists feel that thermal imaging without a warrant is constitutional? I don't keep up with the movement, so I'm not aware of dissenting viewpoints within it. Thanks, I appreciate the feedback.

UPDATE, late Friday night: This is typical. I get really nice links from Jacob Levy at the Conspiracy and Will Baude at Crescat, and it's for being such a moron they can't avoid pointing it out. No, seriously, I appreciate the answers, even if they expose my lack of understanding of the originalist position. [I had a long aside here about differences of opinion among originalists, and whether originalists think they can, and have, arrived at the One True Answer for constitutional questions, but I decided to excise it when it began to confuse even me.]

But really, my problem is that I haven't been clear on what I'm getting at. I think I bollixed things up by mentionin voting against something as a legislator. Of course, there are plenty of things the legislature has to vote on, the constitutionality of either option being without question. I know Messrs. Levy and Baude didn't mean to insult me (and I appreciate their gentleness in answering what they must have taken to be a pretty dumb question, although calling it a "challenge" sounds like I was making a dare instead of seeking information), but I knew that. Does it make it any clearer if I say I'm asking not about constitutional challenges to laws or policies, but first-order constitutional interpretation in the abstract?

For example (asking rhetorically), what is Justice Scalia's or Judge Bork's (or Prof. Levy's, or Will Baude's) originalist interpretation of the phrase "cruel and unusual punishments"? Or "probable cause"? Or "the right to bear arms"? Or Congress shall make no law"? And when they come to that conclusion, do they ever wish they were wrong? Does Judge Bork ever say that we'd be a lot better off with more nude dancing establishments, if only it weren't for those pesky framers and their understanding of "freedom of speech"? Does Justice Scalia send Christmas cards to the U.S. Sentencing Commission, saying it's a fine institution, and too bad it's not constitutional?

*sigh*

I'm going to stop. I swear -- I really think I have something in my head ["It's not a tumor!" -- Arnold] that I can't put into words well enough for blog readers who aren't mind readers. Anyway, I appreciate all the help (and the links). I'm off to flagellate myself for dumbing down the blogosphere.

OK, last ditch effort: Let's look at the bigger picture instead of individual cases. I think originalists (like most other people, including me) have a theory of constitutional interpretation that coincides with their policy preferences. Prof. Levy notes that Randy Barnett's "understanding of original understanding is pretty constrictive of state action." To use this as an example (and I don't mean to take shots at Prof. Barnett, he's just handy), is there anyone who takes this view but also thinks that the state should be much freer to act (e.g., police using thermal imaging without a warrant), as a matter of policy? In other words, is there an originalist who thinks the original meaning was a bad idea, but still thinks originalism is the best method for interpreting the constitution? I suppose Will provides an answer for that -- he would prefer a more Libertarian constitution, acknowledges that we don't have one, but beats on, boat against the current. Or perhaps I have misread him. Perhaps when Will reads his constitution, he reads a Libertarian document, and thinks we've been screwing it up for 215 years. But if not, why stick with originalism? For that matter, what's so great about any theory of constitutional interpretation if you think the answers it gives out are wrong?

Another Update: See also the interesting discussions of this and related issues at Begging to Differ, the American Costitution Society blog, and from Matthew Yglesias and Jack Balkin (5:26 p.m., 4/11/04), and (belatedly, sorry) Feddie at Southern Appeal. All of these are well worth reading, which is more than I can say about my post.





What might have been
In the wake of the 9/11 commission's grandstanding and fingerpointing over the last few weeks, Gregg Easterbrook proposes an alternative history of the Bush presidency:
WASHINGTON, APRIL 9, 2004. A hush fell over the city as George W. Bush today became the first president of the United States ever to be removed from office by impeachment. Meeting late into the night, the Senate unanimously voted to convict Bush following a trial on his bill of impeachment from the House.

Moments after being sworn in as the 44th president, Dick Cheney said that disgraced former national security adviser Condoleezza Rice would be turned over to the Hague for trial in the International Court of Justice as a war criminal. Cheney said Washington would "firmly resist" international demands that Bush be extradited for prosecution as well.

On August 7, 2001, Bush had ordered the United States military to stage an all-out attack on alleged terrorist camps in Afghanistan. Thousands of U.S. special forces units parachuted into this neutral country, while air strikes targeted the Afghan government and its supporting military. Pentagon units seized abandoned Soviet air bases throughout Afghanistan, while establishing support bases in nearby nations such as Uzbekistan. Simultaneously, FBI agents throughout the United States staged raids in which dozens of men accused of terrorism were taken prisoner.

Reaction was swift and furious. Florida Senator Bob Graham said Bush had "brought shame to the United States with his paranoid delusions about so-called terror networks." British Prime Minister Tony Blair accused the United States of "an inexcusable act of conquest in plain violation of international law." White House chief counterterrorism advisor Richard Clarke immediately resigned in protest of "a disgusting exercise in over-kill."

When dozens of U.S. soldiers were slain in gun battles with fighters in the Afghan mountains, public opinion polls showed the nation overwhelmingly opposed to Bush's action. Political leaders of both parties called on Bush to withdraw U.S. forces from Afghanistan immediately. "We are supposed to believe that attacking people in caves in some place called Tora Bora is worth the life of even one single U.S. soldier?" former Nebraska Senator Bob Kerrey asked.

***

Bush justified his attack on Afghanistan, and the detention of 19 men of Arab descent who had entered the country legally, on grounds of intelligence reports suggesting an imminent, devastating attack on the United States. But no such attack ever occurred, leading to widespread ridicule of Bush's claims. Speaking before a special commission created by Congress to investigate Bush's anti-terrorism actions, former national security adviser Rice shocked and horrified listeners when she admitted, "We had no actionable warnings of any specific threat, just good reason to believe something really bad was about to happen."

***

Speaking briefly to reporters on the South Lawn of the White House before a helicopter carried him out of Washington as the first-ever president removed by impeachment, Bush seemed bitter. "I was given bad advice," he insisted. "My advisers told me that unless we took decisive action, thousands of innocent Americans might die. Obviously I should not have listened."
Read the whole post here.



Thursday, April 08, 2004

Making the Banned
When we began this grand experiment known as Begging the Question, we had a good idea of what the blog would look like in terms of content but we had no idea that BTQ would find such a receptive audience. We have been pleasantly surprised by the response we have received. BTQ has been blogrolled and linked to by several prestigious members of the greater blog community (or blogosphere). In addition, we have been compared favorably to some well-respected sites. Perhaps the most important feedback we have received is that our audience continues to increase.

Several readers have written to us seeking to join the GLG-20s of BTQ. Truly, we are flattered that anyone would enjoy the blog so much that he would want to become a part of it. However, after lengthy discussion, we have decided that we must decline these rather generous offers. Our decision not to add any new members at this time can essentially be summed up by the phrase, "If it ain't broke, don't fix it." It is not that we doubt that some of our readers could (and do) make a significant contribution to BTQ. Rather, we are just more comfortable with the current format and we feel like the blog works best as a two-man enterprise. We hope you understand where we are coming from.

To those of you who have volunteered your services, indeed to all our readers, we again say thank you for making BTQ what it is. We hope that our readers will continue to visit the site, continue to send us their suggestions for post topics (we will continue to post on those topics on which we feel qualified to offer opinions), and continue to participate in BTQ through the comments section.

From Fitz-Hume:The comments section is a key component to this blog. Interacting with readers through the comments section is one of my favorite aspects of this whole experience. It is particularly pleasing when a topic on which I have spent my time and effort generates a meaningful discussion. It doesn't always work out that way, but when it does, it is very satisfying. When I put up a wacky or silly post, I enjoy reading the responses to those as well. Please continue to make the comments section a place for thoughtful contributions on the serious topics and for humorous riffs on our lighter topics. I trust that you can discern between the two.*


*Yes, I know that title is humorous and the topic is serious. Deal with it. To those who have been spamming the comments section let me say, "You just watch your mouth, mister. This department's laying off civilians left and right." Consider it my way of putting everyone on notice that in the last few days I have been banning IP numbers like it's my part-time job.

From Milbarge: I don't have a lot to add to Fitz's thoughtful post. We have talked about this a lot over the last few days (so much that it's kept us from posting that much), and that dynamic reinforced for me why we operate better as a two-man team. It would have been exponentially more difficult to run every conversation about every decision through even one more person. I want to reiterate that this is more about our own comfort zone than any sentiment that "too many cooks spoil the broth." In some cases that's true and in some it isn't. But we like what we've got going and we don't feel like shaking it up right now. If we decide to do so in the future, it should come from our own needs and our own changed vision of the blog. I hope you will respect our decision that any offers to expand BTQ will have to come from us and not from interested readers.

The only other thing I want to talk about now is the comments feature (I may return to the general topic of the nature of blogging some other time). I agree with everything Fitz said above. Unlike some people who will remain Will Baude, I like having comments enabled. Unlike Will, whether a site has comments does not affect how often I visit a site to any degree I notice. In fact, some of my most-visited sites are How Appealing, the Volokh Conspiracy, CrimLaw, and Crescat Sententia, none of which have comments enabled. It simply changes the way I interact with those blogs and the bloggers who run them. I have emailed those bloggers (some of them often) when I felt moved to do so, and they have always been receptive and responsive. But I like the way I can interact with the sites that have comments, and I like having them here. On the other hand, I don't want what happened to Beldar or Ernie to happen here. (The short version is they ended up giving up comments on their sites.)

I don't mean to say you should only comment when you have something to say that you feel is important enough to warrant emailing us if we didn't have the comments feature there. The very purpose of the comments is to make it easier to communicate with us. But I second Fitz's request that readers use their discretion if they feel the need to make a flippant, inane comment about a serious post. I know, we do it too sometimes, but let's all try to work on it. As for changing topics mid-comments, please don't do that. Email us instead. If it's something we feel capable of writing about, and interested enough to do so, we will. And for Pete's sake, stop advertising for triple X sites in our comments section. You know who you are.



Wednesday, April 07, 2004

Great, Just Great
As if I didn't have enough other frustrations in my love life, now it looks like I'm going to get cancer too.





Not A Good Sign
I've been worried about a terrorist attack at this summer's Olympics (see my 2004 predictions, for example). But now, I see that the Greek Premier says everything will be okay. Oh, happy day! Despite massive -- and "massive" might not even do it justice -- delays and problems with getting everything else together (little details like roofs on arenas and such), Premier Costas Karamanlis declared, "Greece will guarantee safe games."

First of all, making a statement like this, given the track record so far, is just dumb. Karamanlis has essentially no basis for making any optimistic pronouncements at this stage. And second, even saying, "I'm very optimistic" is better than saying "I guarantee it," because the guarantee evinces the kind of arrogance and nonchalance that have caused this mess to begin with. And you can't say that the Greeks didn't have reason to get serious about security until September 11, 2001 (Greece was awarded these Games in 1997). Not only has Greece had it share of trouble with 17 November, but the Olympic Games have been specific targets of terrorists in 1972 and 1996. Plus, Athens is a port city close to the Middle East, so the U.S.S. Cole attack should have been a warning too. Recent events in Spain show that terrorists can create havoc in public transportation systems; Greece's is in terrible shape -- congestion equals easy to attack and hard to rescue.

This whole deal (I'm trying to think of an appropriate synonym for "clusterf---") is starting to look like a terrorist all-you-can-eat buffet. And guarantees from Greek politicians aren't going to save lives.





Random Thoughts
I wanted to get this out last night, but Blogger wasn't co-operating. "Ladies and gentlemen, Blogger failed you...and I failed you." A quick word about these posts. It's just stuff in my head I don't feel like devoting a whole post to until I have several of them stored up. I'm willing to discuss them further if anybody wants. I just wasn't really motivated to write a whole lot about any of this now.

1. First, go to Soup's blog and check out the video of Saddam as OutKast. So foolish, so funny.

2. Stuart Buck does more (and better) blogging while recovering from a freaking stroke than I do on a normal day. In this post, he mentions the rumor/conspiracy theory that George Bush was a CIA agent. That's the George Bush that's President now, not the one we already know was a CIA agent. This reminds me of a discussion I had with Fitz the other day about Bush and the lefties' hatred of him. To them, Fitz says (and I agree), Bush is an "idiot savant." Which is so spot-on, it's priceless. They think Bush is brilliant enough to be an international spy in his twenties, but too dumb to string two sentences together without puppetmaster Cheney holding his hand before the Sept. 11 Commission. Maybe for my next song parody I will use the puppet scene from Chicago and call it "They Both Reached For the Bomb" or something.

3. So the Pulitzer Prizes were announced this week. In re-reading TPB's excellent essay on blogging, and especially thinking about blogging as journalism, does anyone have a guess at how long it will be before there's a Pulitzer Prize for blogging, or, before a blogger wins in one of the current categories, like editorial writing?

4. Book recommendations, or at least author recommendations. I haven't read the books yet, but the authors are two of my favorites. First, Martin Clark. I have previously mentioned how much I loved his first novel, The Many Aspects of Mobile Home Living. Now Clark has a new one that looks to be just as rollicking a good time, Plain Heathen Mischief. The New York Times Magazine had a brief review this week. "Plain Heathen Mischief" is such a good title it may have to become my new motto. The NYT Mag story says that Clark, a state trial judge in Virginia, swore to give the proceeds from his first book to the church if he could just get it published. He kept his word, and has given over $100,000 to the church by now. And he could've probably weaseled out of that with some church-state separation business.

Second, Tom Perotta. Perotta wrote the excellent Election (basis for the movie) and the pretty good Joe College. My favorite of his is The Wishbones, which is a must-read for anyone thinking about getting married, or thinking about not getting married. Perotta's new one is called Little Children, and the reviews for it look good too. (Does anybody else sense a progression here: high school in Election, college, marriage, now kids?) Anyway, I'm excited about both of these new ones. I'll close this with a couple of favorite quotes from Mobile Home Living. I recently found the slip of paper I had used as a bookmark for that book, on which I had written some gems.

(a) "Love's just lust spread over time."
(b) "I've often thought that there are really just two sentiments in the world: envy and pity. The world's divided into people and places below you and above you."
(c) The Leading Lady: "You're the most paranoid, pessimistic, faithless man I have ever met." The Hero: "I'm prudent and healthily skeptical. It's my personality type that got us off the flat-world theory and discredited the medicinal use of leeches."

5. I was looking through the list of cases in which the Supreme Court has granted cert (see here for the remaining ones this Term and here for the ones to be argued next Term). It's kind of funny how you can look at the question presented, realize the lower court did something pretty unusual, and be right more often than not when you guess the appeal came from the Ninth Circuit. I'll have some more about pending cases soon, I hope.

6. I was reading my law school's alumni magazine yesterday, and they had an article in there talking about the intramural sports programs. I had always thought that the funniest team name I had ever seen (I saw it on the old trophies in the law school) was Well Hung Jury. But I think I like even better one I saw in the article, an all-woman team called the Fem Fee Tails. What makes it so perfect is that it's probably as inside as an inside-baseball joke could be. It's an incredibly obscure legal reference -- even within the obscure world of law school.

7. Here is an interesting article about Senate hearings to discuss "a la carte cable." The idea is that consumers would only have to pay for the channels they want, instead of having to buy huge packages just to get one or two channels. John McCain is a big supporter. The cable companies say it would be more expensive, and would probably mean that niche channels would die off for lack of support, leaving us with fewer choices in the long run. I'm not sure about the whole thing, but I do know that every grandmother in America would love this. They would have like four channels: CNN, the Weather Channel, and whatever channel their stories are on.

8. I was talking with some friends about the end of the college basketball season, and I went off on a tangent about women's basketball. Anyway, here's part of what I said to them, edited a tiny bit.

Here's my plan to save the WNBA. I have never watched a WNBA game, and I like women's ball a good bit -- I watch a fair amount of college women's hoops. But the WNBA will fold even sooner than MLS will (gratuitous soccer dig for you soccer fans). What they need to do is scrap the NBA model of teams in big cities and drafts and all that. Put a team in Storrs, one in Knoxville, one in Athens, one in Durham, one in Austin, one in wherever La. Tech is, etc. Basically all your big women's college basketball hotbeds. Then, just let the college players keep playing there, only for pay. I would watch Diana Turasi and Sue Bird and the Storrs Snores play Alana Beard and Iciss Tillis and the Durham Dissertations (not as bad as real WNBA nicknames) next year. And then in the playoffs they meet up with Chamique Holdsclaw and the Johnny Knoxvilles or whatever. You've got a built-in fan base, built-in rivalries, the fans know the players, and you get to see players who didn't play together in school play together in the pros. It'd be like Shane Battier and J.J. Redick playing together against Richard Hamilton and Emeka Okafor -- in Durham! Keep the teams in L.A. and New York and a few other places for all the players who can't be matched up with old college teams. The big college programs sell tickets and have fans, and the WNBA can't do either one. There are no rivalries and nobody cares about the players. But my plan would change that. David Stern and the NBA keep insisting that the WNBA is the same thing, only with women, but it isn't, and the NBA sucks anyway. For the women's game, college ball is where it's at, and they need to capitalize on that, not ignore it.



Tuesday, April 06, 2004

"We Mock What We Do Not Understand"
I got a chuckle out of the How Appalling mock site of How Appealing, which implied that Howard Bashman is...well, let's just say that the word "me" shows up pretty frequently on the parody site. Then, yesterday, I saw this post at the real site, which links to a story about the L.A. Times winning five Pulitzer Prizes. Howard then says that this "makes me proud to have published an op-ed there last year."

If Howard wants to play this up, it's all about the careful placement of the words he uses. Instead of saying he is an "op-ed author in the Pulitzer Prize-winning L.A. Times," he could say he is a "Pulitzer Prize-winning L.A. Times op-ed author." It's the same words; it's our fault if we misconstrue it to mean that Howard won a Pultizer. Even without the wordplay, this sort of makes him a Pulitzer winner by association, no? Not that he would want anyone to think that, of course.

(Note: I think everyone will take this in the spirit in which it is intended. I have nothing but respect for Howard Bashman. If I could only visit one blog -- including my own -- I would choose his. So I hope he can take a little gentle ribbing without siccing all his friends in the judiciary and executive branches on me.)



Monday, April 05, 2004

Implied Malice Murder of a Fetus
Thanks to Howard's tip, I see this very interesting opinion from the California Supreme Court (21-page pdf). The question, as the court stated it was, "In the absence of evidence the defendant knew the woman was pregnant, may the defendant be held liable for the second degree implied malice murder of the fetus?" I won't keep you in suspense; the court answered in the affirmative.

I'm not going to get into big slippery slope arguments about this. As a matter of criminal law, I don't have a problem with it, but I think it's very close. But gun-toters in California now have to be on notice that shooting a bullet that might hit a woman of childbearing age is sufficient implied malice to make you liable for the death of a fetus that happens to be hit. The analogy the court used is firing indiscriminately through a closed door, not caring who is hit. The dissent argued that the defendant should have to be proven to have had knowledge of the particular danger to fetal life, as opposed to "life in general." I note that the relevant law draws a distinction between "a human being, or a fetus" (emphasis added), and the punishment schemes are different. The dissent characterizes the question as, "If a murder of a fetus is not the same crime as murder of a human being, is the mental state for muder of a fetus different from the mental state required for murder of a human being?" Anyway, it's an interesting read, and I suspect I'll have more to say about it later on. (Note: I have updated this post a bit since I first published it.)





If there are no athiests in foxholes, what about "the hole"?
Long-time readers know of my interest in RLUIPA cases. I saw an interesting case recently that raises some of the same issues. The case is Kaufman v. McCaughtry, 2004 WL 257133 (W.D. Wis., Feb 9, 2004) (the link is a 35-page pdf).

Kaufman was a Wisconsin prisoner who wanted to form an athiest group. The plan was to hold weekly meetings to discuss athiesm and humanism and related issues. The prison turned down his request. As a factual matter, the prisoner's case turns out to be a loser, because he runs afoul of neutral prison requirments that proposed groups have an outside volunteer to lead the group (Kaufman had none) and more than one interested member (apparently Kaufman didn't have any athiest friends). The prison also rejected the request to form an athiest group as a mere social group for inmates, as opposed to an inmate religious group, because the prison wasn't starting any new groups at the time. Presumably, Kaufman would have had trouble with a membership requirement there as well.

Anyway, even if Kaufman's particular case lacks merit, it presents some interesting questions. Is atheism a religion? How does one exercise it? Does it violate the Establishmant Clause for a prison to make it easier to form a religious group than a non-religious group? (Note that Fitz's take on all this was, "It's prison. They can do whatever they want.")

The court here assumed for purposes of this case that athiesm was indeed a religion, relying on local Title VII jurisprudence. For Title VII, I think that makes sense, in that employment discrimination "because of religion" would seem to include "because you don't have any." I think, as a matter of public policy, most of us would find an employer's refusal to hire a non-religious person because of that athiesm as distasteful as refusing to hire a person because of his or her religion. Outside of the employment context, I think it gets a little trickier, but most definitions I've seen of "religion" would include athiesm as a belief set. Also note that most courts, like this one, simply assume the question away. I think it would be pretty rare to find a case that hinged on the question.

Even assuming athiesm is a religion, the court held that the prison regulation did not violate Kaufman's right to free exercise of that religion. In the court's words,
He merely states that group assembly is an essential part of the right to free exercise and that atheism is a "communal" thing. This is not enough to show that weekly meetings with other inmates who share his views are essential to the practice of his atheism.
Actually, I would have thought that athiesm is more of an "individual" thing that rejects a communal, "herd mentality" among deists. But whatever. I don't want to shift the burden here, but I'd be interested in hearing the arguments believers would press in favor of weekly gatherings. If the argument is that it's better than practicing one's faith solo, that's one thing. But could most believers prove that weekly gatherings are something they couldn't do without?

The Establishment question is where the court got into RLUIPA territory, and Lemon tests and whatnot. In short, if a proposed religious group met all the (not-too-burdensome) requirements, the prison would approve it. Proposed non-religious social groups had to meet additional requirements, and there was no guarantee that even if they did the prison would approve them. The court notes the cicuit split over the constitutionality of RLUIPA. The court here agrees with the court's upholding RLUIPA because it concludes the rule here merely lifts burdens on the exercise of religion. Whether this is "neutrality" towards or "advancement" of religion depends on one's perspective.

Like I said, Kaufman's case is going nowhere because of the factual problems with it. But the legal issues will undoubtedly come up again. I don't really have a broader point to make, but I thought it was worth pointing out.





Paul Hornung, Affirmative Action Spokesman?
In response to item #3 in this post of mine, regarding Paul Hornung's statement that Notre Dame should lower its academic standards so that it might better recruit black football players, a reader emails to ask:

Did Paul Hornung say anything different from people like John Thompson, etc. who opposed the NCAA requirement that a student-athlete score 800 on the college boards to qualify for an athletic scholarship? This was too tough a standard (according to them) for a black athlete to obtain.

The folks at Begging to Differ have been discussing the issue as well. Hei Lun asks:

[H]ow is what he said different from the rationale for affirmative action? According to Hornung, Notre Dame should lower its academic standards so that the school would be able to admit more black athletes. According to affirmative action proponents, colleges should lower their academic standards so that the schools would be able to admit more black students.

My response is this. I think there are good reasons to have affirmative action programs. Winning more football games isn't one of them. Hornung never said that he was interested in anything black student-athletes would have to offer Notre Dame besides a supposedly better chance at winning. Simply put, I don't think this is a valid reason for any university to lower its academic standards. I think this is what Tim Brown meant, too, when he said, "If Notre Dame doesn't win games because they don't lower their standards, I can live with that. But to lower your standards just to win football games is a wrong decision."

As for former Georgetown basketball coach John Thompson's longstanding criticism of the NCAA's minimum score requirement, I think that's different too. There, you're not talking about admission standards, you're talking about eligibility standards. I think it's reasonable (even if no one believes it anymore) for the NCAA to call players "student-athletes" and insist that they demonstrate some ability to achieve academically as well as athletically. As a proxy, the NCAA instituted a sliding scale GPA/SAT requirement. According to this grid (which might be a year or two out of date but is probably still close enough for present purposes), the minimum SAT score one must have is now 820 (note that the SAT scores have been re-scaled since Thompson's day) for full qualifiers and 720 for partial qualifiers.

But again, we're not talking about overall university admissions standards, we're talking about eligibility standards for athletics. (Some schools impose eligibility standards of their own that exceed the NCAA's.) I took Thompson's argument to be that if the NCAA is going to set a minimum cut-off for eligibility, it shouldn't do so based so heavily on the SAT, which Thompson argued was biased against black students. Our reader may be correct that Thompson's concern was that the minimum score was "too tough" for black students, but that isn't precisely how I remember Thompson's argument. Now, one can unpack that argument and disagree with various parts of it. And Thompson may have felt that the minimum score was "too tough" to attain because the test was biased. And my guess is that Thompson supported affirmative action programs, too. But I think there's a distinction between lowering standards to get into the university and lowering standards to play sports once a student is there.



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    Disclaimer

    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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