August 28, 2007

Old: Intellectually Dishonest; New: Dangerously Fictional

by PG

Having recently heard criticism of my post about Thomas's concurrence in the Bong Hits 4 Jesus case, I re-read the post myself and have come up with an alternative phrase that might be more acceptable than "intellectually dishonest." That was how I described the concurrence for ignoring that it wasn't just state-run schools that could trample student's federally-protected speech rights -- it was any state institution, anyone's rights, and any aspect of the First Amendment. It's not a phrase I use much at De Novo; it was on my mind when I wrote the Bong post because of Melinda Henneberger's saying that women voters have a desire for less intellectual dishonesty from politicians. However, Wikipedia says, "Intellectual dishonesty is the advocacy of a position known to be false," and I wouldn't say the concurrence is doing that so much as it is using rhetoric "to advance an agenda or to reinforce one's deeply held beliefs in the face of overwhelming contrary evidence."

The alternative phrase can be found in the same post, in a quote from Alito's concurrence, which disdains Thomas's claim that public schools merely stand in the place of parents when it comes to controlling and disciplining students. Alito, joined by Kennedy, countered, "When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority -- including their authority to determine what their children may say and hear -- to public school authorities."

So how about now, when I think that someone has made an argument that ignores relevant facts, I call it a "dangerously fictional" opinion?

August 28, 2007 08:43 PM | TrackBack
Comments

Given that you're in "quasi-recant" mode, do you feel like taking back your accusation that the "conspiracy theory" contained in my brief was merely another paranoid "Black Panther" rant?

Or will you maintain your own "intellectual dishonesty"/"dangerous fiction" by ignoring the cold, hard, ugly facts.

Like these:

http://www.law.ucla.edu/sander/NSF/CABar.htm

And these:

http://www.ceousa.org/index.php?option=com_content&task=blogcategory&id=78&Itemid=100

Before I get sacked/shot by the CIA/defamed as clinically insane, I'd at least like to be vindicated.

I don't know whether your memory is as good as mine, but I'm still eagerly waiting your post on the public high schools case and your (undoubtedly) insightful comments on these recent revelations.

I forgive you if you don't have the "intestinal fortitude" to respond. You need to be so careful of those nasty "irrelevant assumptions" that people can make on controversial issues.

Posted by: Timothy Don-Hugh Mak at August 29, 2007 01:59 AM

Dear goodness, PG, don't answer that. Not only isn't it a good argument, it's not even a good collection of snide insults.

Mr. Don-Hugh Mak, I suggest watching a season or two of Blackadder, learning how it's done well, and trying again.

Posted by: A. Rickey at August 29, 2007 12:10 PM

"Dear goodness"??????

I've seen every season of Blackadder and I don't think they ever used the term.

Posted by: Timothy Don-Hugh Mak at August 29, 2007 07:33 PM

Mr. Don-Hugh Mak,

1) I'm not "recanting" anything. I am putting forward an alternative phrasing that may more closely approximate what I mean than a past usage did. For me, expressing my ideas with the minimum likelihood of misunderstanding by the reader is an important goal.

2) I never have contested that a) affirmative action occurs; b) that it is disadvantageous to the overrepresented minority (Asians); c) that at institutions like UMich undergrad and probably many law schools, it fails to be advantageous to underrepresented minorities because they are admitted and then not given the support needed to "catch up" with their non-AA-admitted classmates; d) that California does not hand over the data that researchers are demanding.

Therefore I am not going to argue any of the above with you.

You came to this blog (and have continued reading, which I appreciate) because of the footnote in which I compared your theory of AA's having been designed with the "main effect" being to create an advantage for the none-too-bright scions of the white Establishment, to the sort of conspiracies about the white Establishment the Black Panthers would propound ("The White Man pretends to be helping us, but he's actually doing this to HELP HIMSELF!"). In your comments to that post, you conceded, "If you think I'm over-reaching on the issue of 'intent' or 'mala fides', that's perfectly understandable and I accept (both here now and in the brief) that these perverse effects may be unintended."

So much for what seemed to be our initial point of disagreement.

I still disagree that the "main" effect of affirmative action -- even if unintentional -- is to advantage the white Establishment, because
a) the majority of students who are admitted with legacy points would have been admitted without it, these being students from households that prioritize education (much like many Asian homes);
b) the number of seats that otherwise would have gone to whites and are lost to underrepresented minorities is greater than the number won from the Asians; and
c) many of students admitted with the help of affirmative action actually find it useful and become successful, an effect that I think probably is much stronger than the effect on the bottom group of whites of having less competition while in school. Someone who gets into a top 10 law school and makes straight Bs (with Columbia grade inflation, this would be a below-average student) still has massive benefits from access to employers that don't widely interview at lower-ranked schools.

If you could indicate exactly what "recent revelations" you're talking about -- I assume something I could dig out from those links, that I haven't already agreed to above (affirmative action occurs, the CA bar and universities won't help researchers figure out its effects) -- then please specify what those are. The effect of your writing style is to leave me frequently confused as to what you mean, so if you could spell it out clearly and plainly, I can respond. I have no desire to go through another round of discussion in which I take your statement at face value (e.g., a desire to see graduation rates of the various races at Ivys and UMich), and later discover that what you actually meant was something else (e.g., a desire to see average grades and graduation rates of the various races). Such discussions are a waste of time for all parties.

Posted by: PG at August 30, 2007 01:37 PM

Halleluiah!!! I think we’ve both seen the light.

Your whole post is eminently sensible. It’s also clear. It’s also – I hate to say it – more elegantly written that much of what my sledgehammer wit produces. It is also (in my view) the only post you’ve written justifying a considered, sober, non-facetious response.

I maintain that the tenor of your earlier posts was unwarranted, extreme and justifies a retraction (and was arguably defamatory in some jurisdictions, but let’s not go there). I have been told my own rhetoric is sometimes close-to-nuclear, so I can understand your disdain. Disdain is by no means an unusual response to my existence on the planet, and I’ve learned to live with it.

I agree with your points (1) and (2). I could quibble with some minor details but at this point in my life, I have better things to do.

In relation to your alphabetized hypotheses in the latter part of your post, I make the following comments and then (hopefully) you will never hear from me again:

(a) This hypothesis, although very plausible, is patently (verifiably) false and betrays a fundamental misunderstanding (or sad ignorance) of the Espanshade and Chung study. This study verifiably establishes that the "average" SAT points score for legacies is significantly lower than the "average" SAT score for the general student population. I don’t understand your use of the term "majority" in this context, but the Espanshade and Chung study is pretty clear and I suggest you take another look at it. Of course, some legacy admits would be smart enough to be admitted without Mommy or Daddy’s surname. But ON AVERAGE, they do need Mommy or Daddy’s help to get it. Due to an unbelievably embarrassing typo in the brief (it was written very late at night in various Australian outback towns as I was traveling around for work, so please forgive me I beg you) I believe the "silver spoon" effect is actually 160 points not 16 points and is almost the same as the boost given to Hispanics (Latino/a Americans for the pc). This is a huge boost in the context of SAT points. Please also take a look at Daniel Golden’s book to see with your own eyes the anecdotal evidence of rich "not-so-bright" Establishment-types being smuggled in the back door. If you don’t realize it yet, there is an eternal law of economics: Money Buys Everything that is for Sale – including Harvard degrees, and a great many young legal souls.
(b) This is (again) plausible and probably what most Americans believe, but it is (again) patently (verifiably) false. Whites are almost completely unaffected by affirmative action at elite universities. They may well be (severely) detrimentally affected in lots of other areas where AA “infects” decision-making, but not in higher education. This is the key point coming out of the Espanshade and Chung regression analysis, which is the most rigorous study we have to date.
(c) I don’t disagree, but you’re missing the big picture. No doubt a great many AA admits do succeed (Alberto Gonzales may no longer be a shining example, but I get your point). When examining statistics there are always exceptions to the rule. Some (even many) exceptions to the rule do not destroy the rule. The question is whether ON AVERAGE AA admits would be MORE LIKELY to succeed at a law school/med school/university that better matches their true, testable academic ability. That’s a statistical question. It is also very easy to answer. It just requires the right data to be put in the right machine and "Hey Presto!" out it will pop. This is the very question Sander et al. are interested in examining. I respectfully suggest that it is THE most important issue for any serious, genuine defender of AA to address (forget about Asian-Americans for the moment; many people consider them invisible anyway). And it is one that the Californian Legal Establishment doesn’t want examined. Why? Why? Why? Why? Why? Why? Why? Why? Why? Why? Why? Why? Why?

Good luck in your legal career. You have the political canniness to move in the right circles and say the right things, so I’m sure you’ll go far. The rich liberal Establishment no doubt loves you, and that’s all that matters in life.

Posted by: Timothy Don-Hugh Mak at August 31, 2007 03:54 AM
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