Racial Diversity Had About As Bad A Day In The Supreme Court As Everyone Expected

By Ian Millhiser on Oct 10, 2012 at 4:20 pm

The University of Texas’ race-conscious admissions program was not expected to have a good day in front of the Roberts Court today, and the conservative justices did little to change these expectations in today’s Fisher v. University of Texas hearing. At one point, Justice Scalia accused UT of employing armies of race counters in some kind of “affirmative action department.” Justice Kennedy falsely accused UT of creating an admissions program where “race counts above all.” Justice Alito spent much of the argument laying an elaborate trap intended to trick the university’s lawyer into saying that Texas’ nuanced admissions program is akin to a constitutionally forbidden racial quota. By the end of the argument, the primary open question appeared to be whether the five conservatives would overrule the landmark racial diversity decision in Grutter v. Bollinger, or, as Justice Sotomayor characterized the plaintiff’s argument, simply “gut it.”

The most interesting part of the argument came at the beginning, however, and it had little to do with the merits of this case. Abigail Fisher, the plaintiff in this case, was a marginal applicant to the university. Her 1180 SAT score is far from distinguished among UT students, and her 3.59 high school GPA places her well below the university’s median. In its brief, UT claims, quite plausibly, that she would not have been admitted even if the university’s admissions policy took no account of race.

The reason why this is relevant is because the Supreme Court has long held that a plaintiff is not allowed in federal court unless they have experienced a harm that is “actual or imminent” not “conjectural” or “hypothetical.” Fisher’s claim that she was kept out of UT merely because she is white is conjectural at best, and thus it is not at all clear that she should be allowed to sue the university in the first place.

Of course, there is a good reason why the Supreme Court should treat this inquiry liberally and allow Fisher to sue. It is almost axiomatic that only a marginal or worse applicant will sue to challenge a university’s admissions policy — strong applicants will be admitted in the first place — so if the Supreme Court holds that Fisher cannot sue, it is unlikely that a new plaintiff will step forward that has significantly better credentials. The courts should not be prevented from considering whether something is unconstitutional because of restrictions on who is allowed to sue that are so strict that they prevent anyone from bringing a case.

There was a time when the Supreme Court understood this reality, but that time has long passed. The Roberts Court, by contrast, has been more than eager to shut off constitutional claims they disagree with by simply preventing anyone from suing in the first place. Indeed, the Court’s five conservatives have taken significant strides towards making it impossible for many unconstitutional government establishments of religion to ever be challenged by anyone.

By, of course, Abigail Fisher is not a religious minority objecting to government subsidies of religious schools. She is a white woman attacking a major conservative bugaboo — affirmative action. Justices Ginsburg and Sotomayor both did their best to point out the reasons why Fisher might not be an appropriate plaintiff to bring this suit, but the conservative majority brushed off their concerns.

This brush off could have serious consequences if Fisher wins her case, which she appears likely to do. What happens when every marginal white applicant who was denied admission to UT in the last year sues claiming that they should be allowed in? For that matter, what happens if thousands of applicants who are obviously unqualified join this same lawsuit? If the Supreme Court does not clarify exactly who is allowed to file these kinds of lawsuits or exactly what remedies they are entitled to, the University of Texas may find itself forced to retroactively admit many more students than it can accommodate.

In the end, however, the five conservatives appeared unlikely to care. Nor did they seem especially concerned with the arguments supporting the merits of UT’s claims that I laid out elsewhere. The University of Texas’ admissions policy appears no more likely to stand today than it did yesterday.

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Health

How Paul Ryan And His Supporters Profit From The Private Insurance Industry

By Sy Mukherjee on Oct 10, 2012 at 3:52 pm

Paul Ryan and his GOP colleagues have always had the private insurance industry’s back, long advocating for health care policies — such as Ryan’s proposed budget that would turn Medicare into a voucher program — that boost insurance companies’ profits at the expense of American consumers.

According to a new Public Campaign Action Fund (PCAF) and Health Care for American Now (HCAN) analysis, insurers are returning the favor to the tune of $14 million in campaign contributions to Ryan and fellow Republican supporters of his “premium support” plan.

The report also reveals that Ryan’s running mate, GOP presidential nominee Mitt Romney, has received close to $2.7 million from the private insurance industry.

All told, the study finds that eight out of the top ten recipients of insurance industry cash during the 2012 election cycle — including every member of the House GOP leadership — are supporters of the Ryan plan.

Ryan himself has pulled in more cash from private insurance employees and their families than he has from any other businesses — totaling $815,328 over the course of his political career.

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Alyssa

Robert Woods And The Case For Standardizing College Football’s Concussion Evaluations

By Travis Waldron on Oct 10, 2012 at 3:37 pm

University of Southern California wide receiver Robert Woods — one of college football’s top pass catchers — took a nasty hit in the first quarter of the Trojans’ victory over Utah last Thursday. Woods, who was downfield blocking on a punt return, hit the ground face first after taking a hit to the head. He immediately got to his feet and attempted to head to the sideline — the wrong sideline — before stumbling and collapsing back to the turf:

A play later, Woods was back in the game. That drew an immediate reaction from sports blogs and other reporters — one of whom said on Twitter that he witnessed Woods fail a concussion test (he later said he couldn’t be sure Woods failed). Los Angeles Times columnist Bill Plaschke wrote that he was scared for Woods throughout the remainder of the game, and multiple columnists took USC coach Lane Kiffin to task for Woods’ quick return.

Woods, for his part, told reporters this week that while he got “jacked up” and was “kinda like gone” after the hit, he hadn’t felt ill-effects afterward and passed a balance test, a math test (“100 minus 7, minus 7 minus 7 a couple times,” he said), and answered a couple other questions. He was ultimately fine to return, he said. That Woods only answered a few questions before he was deemed fit to return to the game also drew a strong reaction from columnists, and the entire episode has been the subject of sports fodder for several days now.

A criticism I haven’t seen, however, is that the NCAA doesn’t have a standard procedure for evaluating potential concussions on the sidelines. The NCAA does have a standard policy for players who can be immediately diagnosed with a concussion, and it mandates all schools have a “concussion management plan” for such players. What it doesn’t seem to have is a standard process outlining exactly how players like Woods should be evaluated. Here’s what the NCAA Football Rulebook says about concussion evaluation:

CONCUSSIONS—Coaches and medical personnel should exercise caution in the treatment of a student-athlete who exhibits signs of a concussion. See Appendix C for detailed information.

Appendix C adds a list of symptoms commonly associated with concussions. It says (emphasis theirs) “athlete who exhibits signs, symptoms or behaviors consistent with a concussion, either at rest or during exertion, should be removed immediately from practice or competition and should not return to play until cleared by an appropriate health care professional.” Here is section 3 of Appendix C, the most relevant part of the rulebook for situations like Woods’:

Allow the student-athlete to return to play only with permission from a health care professional with experience in evaluating for concussion. Allow athletics medical staff to rely on their clinical skills and protocols in evaluating the athlete to establish the appropriate time to return to play. A return-to-play progression should occur in an individualized, step-wise fashion with gradual increments in physical exertion and risk of contact. Follow your institution’s physician supervised concussion management protocol.

None of this is meant to demonize the NCAA, which has been proactive in recent years about protecting football players from head injuries. For that, it deserves credit. But it seems, in the wake of the Woods case, that rather than leaving the process up to each individual school, standardizing the process for evaluating and diagnosing a player who may or may not have suffered a concussion would be another step in the right direction (the NCAA, when it mandated concussion management plans, recommended minimum evaluation techniques but does not appear to have standardized them).

I am hopeful that USC’s training staff took the necessary steps to evaluate Robert Woods before he went back into the game (USC, as Kiffin noted, has a fairly cautious record on serious injuries). But letting medical professionals develop a standard evaluation procedure — or implementing pieces or all of the standard recommended procedures that have been developed — would go a long way toward removing any doubt about when, and if, players like Woods should return to the field.

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LGBT

REPORT: LGBT Intimate Partner Violence Increased In 2011

By Zack Ford on Oct 10, 2012 at 3:35 pm

A new report from the National Coalition of Anti-Violence Programs (NCAVP) finds an increase in intimate partner violence (IPV) within the LGBTQ and HIV-Affected communities. Here’s a look at some of the troubling data collected for 2011:

NCAVP documented 19 intimate partner violence homicides within the LGBTQ/HIV community, the highest yearly total on record (compared to 6 in 2010).
LGBTQ/HIV people under the age of the 30 were more than 50 percent more likely to experience physical violence in their relationship.
People of color within that group were nearly 4 times as likely to experience physical violence.
NCAVP documented a decrease in reports of intimate partner violence, but largely because the Los Angeles Gay & Lesbian Center (LAGLC) lost its funding for reporting. Without factoring in LAGLC numbers, there was an 18.3 percent increase in reports of LGBTQ/HIV nationwide.
Among survivors of IPV who sought shelter, well over half (61.6 percent) were denied access to shelter, disturbingly up from 44.6 percent in 2010.

Members of the LGBTQ/HIV community have less access to resources and education, such as IPV prevention initiatives, including survivor-led programs. The report adds that cultural competency training is important for victim service providers so that shelters are more accessible. In addition, the LGBTQ-inclusive Violence Against Women Act (VAWA) would ensure that IPV victims are more visible and would recognize under law that the LGBTQ community is currently under-served and has unique needs.

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Economy

How Lawmakers Obsessed With Reducing The Debt End Up Short-Changing Children

By Jeff Spross on Oct 10, 2012 at 3:20 pm

Republicans often portray reducing the debt — which they insist must be done entirely through spending cuts — as a matter of principle as well as good policy. “In my view, it’s not just bad economics,” GOP presidential candidate Mitt Romney said in August. “It is immoral for us to pass these burdens on to coming generations.”

But a new report from the Urban Institute, flagged today in The New York Times, found that spending and tax exemptions that protect children from poverty and invest in their future will decline from 3 to 2.3 percent of the economy by 2022 — largely as a result of attempts to reduce the debt.

Much of the effect is due to the exhaustion of the 2009 stimulus combined with the spending caps imposed by the Budget Control Act of 2011, which averted the debt ceiling crisis. Some elements of support for children were exempted from the BCA, particular health care programs and income support. But other areas such as tax provisions, education, and nutrition support will see a significant hit, as this chart shows:

And this is merely spending paths as they currently stand. Half of the BCA’s cuts over the next decade fall on the military. Republicans are becoming ever more adamant about sparing the Pentagon from those reductions, and shifting them over to other agencies. Their plan would further reduce the support children receive in the coming years, most notably through a series of deep cuts to the food stamp program.

And on top of that, the budget plan proposed by Romney requires cutting everything that isn’t Medicare, Social Security and defense by 40 percent by 2016. This would level even greater cuts on the programs already hit by the BCA, as well as the spending the BCA passed over — all while leaving programs for the elderly effectively untouched.

The irony should be obvious: In the name of reducing the debt burden on our children, Mitt Romney and the Republicans would decimate the programs that provide those same children with the investments, opportunities, and support to grow into productive adults able to take on future challenges.

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Justice

Obama ‘Foreign Donation Scandal,’ Hyped By Right-Wing, Based On Inaccurate Google Translation

By Josh Israel on Oct 10, 2012 at 3:00 pm

As ThinkProgress detailed Tuesday, right-wing and mainstream news sources have extensively misrepresented a new report by the conservative Government Accountability Institute (GAI), suggesting incorrectly that the report details widespread foreign money flowing to President Obama’s re-election campaign. A further review of the report finds that the sole example included of a foreign-national donor giving to the Obama campaign was, in fact, based on a translation error.

The GAI’s report, America the Vulnerable: Are Foreign and Fraudulent Online Campaign Contributions Influencing U.S. Elections? cited a Norwegian blog as an example of an apparent non-citizen claiming to have illegally contributed to a U.S. political campaign:

A Norwegian blogger posts a solicitation from the Obama campaign, including the link to the donate page. When another blogger opines that non-U.S. citizens cannot contribute because of American law, the blogger responds in Norwegian, “I have in practice given money to Obama, I had done it.”

The footnote for this claim links to a blogger named “Gaupefot.” His or her comment, in Norwegian, was:

Jeg mottar nok bare epost fra Obama. Pøvde å donere penger til John Kerry i 2004. Det gikk dessverre ikke. Forøvrig har ikke USA noe de skulle sagt på det området. De tar heller livet av utenlandske politikere. Pengedonasjoner blir for pingler slik de ser det. CIA har forøvrig gitt penger til Det norske arbeiderparti, og antakeligvis også til andre norske partier og politske grupperinger.

Hadde jeg i praksis kunne gitt penger til Obama hadde jeg gjort det.

The GAI report’s authors apparently relied on Google Translator for their translation of that final line. ThinkProgress confirmed with three Norwegian speakers, including a University of North Dakota professor of Norwegian language, that the quote actually means quite the opposite.

Gaupefot’s comment claims a failed 2004 attempt to donate to John Kerry’s campaign. The correct translation of the last line is, essentially, “If I actually could have given money to Obama, I would have done it.”

The GAI did not respond to multiple requests for comment on the report and on this glaring error. It is unclear how many of the other translations throughout the report report also relied on Google Translator — a literal translation service that is incapable of understanding nuance or context.

Despite a wide array of irresponsible headlines, it is now clear that the authors did not find a single example of a foreigner donating to the Obama re-election campaign.

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Climate Progress

The Sounds Of Climate Silence: Mitt Mocks Carbon-Fueled Drought, Obama Calls It A Distant Threat

By Brad Johnson, Guest Blogger on Oct 10, 2012 at 2:59 pm

by Brad Johnson, campaign manager of Forecast the Facts

Nearing the home stretch, the presidential campaign continues to fail to seriously address global warming, although there are glimmers of change in Barack Obama’s corner. The Republican candidate continues to tout climate denial, while the Democratic candidate is still only willing to admit that climate change is a threat to future generations.

In a campaign stop in Van Meter, IA, Mitt Romney joked about the carbon-fueled drought in the middle of a rant against environmental regulation, including action on climate:

The regulatory burden under this administration has just gone crazy. The President’s regulations as it relates to farming are kind of interesting. One is, the EPA tried to get into, er, the government tried to get into regulating rainwater in ditches on farms. It used to be that there was rainwater in Iowa, and people care about that – we hope it’s coming back soon! But in addition, they want to regulate dust, they want to impose duplicate rules on pesticides, there was an effort – you recall this – to prevent teenagers from being able to work certain functions on farms. And then there’s pushing cap and trade. I understand if they push cap and trade, it will not only massively affect income of farms, but it will take millions of acres out of farming. My own view on regulation is very different. You have to have regulation, you need regulation for markets to work effectively. But I’m going to cut back on regulation. I’m going to put a cap on regulation.

Watch it:

Romney’s mindless attacks on environmental regulation require a rejection of scientific knowledge — including the awareness that carbon pollution from fossil fuels is a driver of the terrible drought gripping this nation.

Speaking to college students at Ohio State University in Columbus, OH, President Barack Obama reiterated his convention line that “climate change is not a hoax,” telling the young audience that the deadly impacts of climate change are “a threat to your future“:

And my plan will continue to reduce the carbon pollution that is heating our planet, because climate change is not a hoax. More drought and floods and wildfires are not a joke. They’re a threat to your future. And we’ve got to make sure that we meet the moment. That’s why I’m running.

In this campaign, Obama has been careful to describe climate change only as a distant threat, one that will only affect future generations or people overseas. On Monday in San Francisco, Obama told supporters that the climate impacts are “a threat to our kids’ future.”

A careful review of Obama’s statements on climate and energy finds that the last time the president clearly linked climate change to present impacts on U.S. soil was in his Earth Day speech in 2009, in which he described “shifting weather patterns that are already causing record-breaking droughts, unprecedented wildfires, more intense storms.” That speech was also one of the last times he made a detailed call for a hard, scientifically based cap on carbon pollution.

The president’s rhetorical shift from describing climate change as a present enemy in 2009 to a future threat in 2012 goes against the evidence of his first term — a litany of billion-dollar climate disasters, year after year after year.

With the selection of climate denier Paul Ryan as a running mate and carbon baron Harold Hamm as his energy adviser, Mitt Romney’s climate-destroying agenda is unambiguous (even if he dusts off the Etch-a-Sketch in the coming weeks). In contrast, it’s possible that President Obama’s campaign team is beginning to wake up to the political benefits of honesty about the dire climate threat. As Obama said recently, “If you want to be president, you owe the American people the truth.”

Brad is managing the Climate Silence campaign, which demands that the candidates provide climate leadership.

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NEWS FLASH

POLL: Marriage Equality Lead Remains Strong In Maine | Another new poll in Maine shows that voters continue to strongly support marriage equality by a 56.6 percent majority, compared to just 39 percent who oppose the referendum. According to the Pan Atlantic poll, those who said they will vote “yes” still “expressed some level of opposition to same-sex marriage in general,” suggesting it’s still a very tight race. A Critical Insights poll last week found the Question passing with 57-36 support.

NEWS FLASH

College Enrollment Falls For First Time Since 1996 | According to new data from the U.S. Education Department, college enrollment fell in 2011 for the first time since 1996. As Inside Higher Ed explained, “it’s possible that enrollments are leveling off (and shrinking slightly) now because the economy had begun rebounding enough by fall 2011 that some of those who had flocked to higher education during the recession began finding jobs. It’s also possible that college tuition levels — which have continued to rise in recent years, driven in part by cutbacks in state support and other traditional sources of colleges’ revenue — are pricing more students out of higher education.” Four-year public colleges saw an encouraging increase in enrollment of 120,000.

Alyssa

Discovery’s Embarrassing Embrace of Ted Nugent, And The Value of Public Broadcasting

By Alyssa Rosenberg on Oct 10, 2012 at 2:05 pm

Ted Nugent

Normally, when celebrities embarrass the networks who are about to dedicate programming hours to them, it’s something of a shock. VH1 had no idea Chad Johnson would batter his wife, Evelyn Lozada, shortly before a reality show about the couple was slated to air. And normally, when something like that takes place, the network responds quickly: VH1 cancelled “Ev and Ocho” before a single episode of it had even aired. But the Discovery Channel is in a decidedly different situation with Ted Nugent, the subject of an hour-long special called “Ted Nugent’s Gun Country” which airs on the network at 10 tonight.

Nugent, in the course of promoting the special, tossed in an accusation that the Obama administration had participated in a treasonous “criminal complicity to murder” American citizens by not upping security somewhere on September 11. If it were anyone else, Nugent’s comments might be shocking. But it’s not as if the Discovery Channel didn’t know what they were getting when the decided to collaborate with him. For a long time, Nugent’s stock in trade has been indulging the ugliest impulses that occur to him. He’s your go-to guy if, for example, you think Hillary Clinton is “a worthless bitch” and get excited to hear someone say it out loud. Discovery won’t pull the special because comments like these don’t reveal anything new or surprising about Nugent’s character, opinions, or sense of what constitutes appropriate public discourse.

What is sort of depressing is the way Discovery’s presenting the special, and Nugent, as “a strong and vocal advocate for guns, hunting and all things America.” There is not actually consensus that gun ownership or hunting are essential American pursuits. And I wasn’t aware that denigrating women in public life or engaging in violent fantasies about people you disagree with politically, both staples of Nugent’s rhetorical and on-stage arsenal, counted as “all things American.” Nugent may declare, in promotional material for the show that appears on Discovery’s website that “Our American Dream is measured in ballistics.” I’m not sure Discovery realizes how crabbed and depressing that formulation is. It would be unattractive for Discovery to work with Nugent under any circumstances, but if the network is going to do a special on him, it would be nice if they could find their way to a more limited characterization of him, unless, that is, the network finds his politics as interesting and worthy as his enthusiasm for firearms.
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