Comment by kolbe
6 days ago
While you are completely right about the impossible/conflicting legal standards here, this is not an unusual state of things. For example: it has been illegal to discriminate for a very long time, but it has also been de facto illegal to have demographic compositions substantially different from the general population. So, they've always been faced with the problem of needing to either discriminate to get the numbers to match, or not discriminating and risking the numbers falling out of line. The real law has always been, and always will be, prosecutorial discretion. Whatever party is in control will choose whether they go after you or not, and they can because you're always violating one side of something.
> it has also been de facto illegal to have demographic compositions substantially different from the general population
How so? To which law or case precedent?
Any law or policy that has a "disproportionate impact" on a protected class is subject to challenge, and will often lose in other public policy matters. I've not seen it happen in school demographics, though most, if not all, schools had some form of affirmative action policy until recently.
The "disparate impact" test applies mainly in civil rights act litigation, and it's extremely hard to make a case under that theory. It's a three-part test, and showing that a particular policy has a disparate impact on one race is just the first hurdle.
You also have to prove that the party acted with malice: either the policy exists for explicitly racist reasons, or the race-neutral justification is pretextual. If you can do that, you _also_ have to prove that there is a less-discriminatory alternative policy that achieves the same goal.
see, e.g., https://www.justice.gov/crt/fcs/T6Manual7#C'
It is definitely not de facto illegal to have a racially lopsided student body -- the school might be asked to justify the specific policy or practice that led to that outcome on race-neutral grounds, but saying "GPA and test scores" would be more than enough.
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Do you know what "de facto" means? I didn't say "de jure," and you're asking for de jure evidence.
It can only be "de facto" illegal if legal action was brought against some entity and succeeded, otherwise it'd be "de facto" nothing. GP also asked for an example case. TBH though I'm not how legal action would succeed without an accompanying law.
Any source at all here for your claim would be nice.
> It has been illegal to discriminate for a very long time, but it has also been de facto illegal to have demographic compositions substantially different from the general population.
> So, they've always been faced with the problem of needing to either discriminate to get the numbers to match, or not discriminating and risking the numbers falling out of line.
Not disagreeing with your larger point, but this sounds wrong (in a sense that, I don’t think that’s the case).
If what you claim was the case, how has CalTech been managing to have such a large percentage of Asian undergrad students (44% according to their Fall 2024-2025 enrollment data[0], with numbers from previous years not straying that far off either) without ever even a hint of getting in trouble over it (given that Asian people make up roughly 7% of the US population)?
I am sure there are similar examples of other schools, this was just the first major known one that came to my mind. Perchance you are correct, and there is simply something special that CalTech has (and Harvard doesn’t) that lets them not worry about this. But that seems unlikely.
0. https://registrar.caltech.edu/records/enrollment-statistics
> de facto illegal to have demographic compositions substantially different from the general population
The Trump administration mid level staffing decisions are something like 70%+ white men! This seems laughable. Controversial maybe, certainly not "illegal" or they wouldn't have done it.
You need to read what I wrote more carefully. The entire point is that whoever is in power decides which law actually gets applied and to whom. Do you think for some reason that the Trump administration risks being prosecuted by the Trump administration?
> The entire point is that whoever is in power decides which law actually gets applied and to whom.
And that "entire point" is historically incorrect in the United States. There is a long, long, LONG history of the Department of Justice investigating and prosecuting members of the administration that technically runs it.
That your point seems to be correct now, in the most corrupt administration of the modern era, is something that is notable and worth discussing. It's certainly not something to sweep under the rug with a both-sides-ist dismissal.
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The executive branch is afforded some discretion, but the judicial system decides how law gets applied as directed by Congress when they write laws.
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This seems like an argument against the rule of law. When arguing for demographic compositions, at least for my personal admittedly limited experience, I see arguments for how policy X upholds the law, or maybe only the spirit of the law in Y ways.
I do not see that here for the current admins demands for diversity.