Cert the 9th Circuit Before It Kills Again

by publius

The Ninth Circuit made a potentially big decision yesterday – Fair Housing Council v. Roommates.com -- that could significantly increase website companies’ liability for content posted by their users (I’ve posted the decision below the fold as an iPaper). Eugene Volokh and Susan Crawford both have interesting things to say about the case. Volokh thinks it’s both correct and fairly inconsequential. I’m not sure I agree. To me, this case illustrates the stark divide between law-in-theory and law-in-practice. As a purely theoretical matter, I tend to agree with Volokh that the decision isn’t a big deal. But when you consider the practical implications, I think it becomes quite harmful.

First, some background. Let’s say that, in the comments section here, Gary Farber accuses “Cleek” of having poor indie-rock sensibilities. Outraged, Cleek sues Typepad (the host of our blog) for defamation. Typepad, however, didn’t actually say anything about Cleek's music tastes, it just made blog space available for others to provide comments.

In this case, Cleek would be out of luck because of 47 U.S.C. § 230. Section 230 grants immunity to websites and service providers for content posted by other parties that use their sites. Thus, you can’t sue Yahoo for offensive statements made on chat boards, nor can you sue Google for content that its search engine pulls up. It’s a good law, and it’s been interpreted quite broadly over the years to avoid “chilling” Internet activity. For instance, Blogger wouldn’t exist if the company could have been sued for every random comment on blogspot sites.

With that in mind, the next relevant law is the Fair Housing Act. To be grossly general, it prevents housing brokers from discriminating on the basis of, among other things, sex and family status. Because brokers can’t refuse to sell to families, they generally can’t even ask whether you have children.

Enter Roommates.com. As the name suggests, this site allows people to find and provide housing. To get started, the site's users must enter information about themselves in various prompts (they were drop-down windows as I understand). Some of these questions involved children and gender (e.g., “Children present” or “Children not present”) that would normally be illegal.

Long story short, Roommates got sued under the Fair Housing Act. Roommates responded that they are immune under Section 230 because its users were the ones who actually entered the information. The court disagreed, finding – and here’s the key – that the structure of the question prompts was itself illegal content creation. In other words, the question prompts themselves were illegal because they required people to answer illegal questions. Critically, the court went on to find that the site’s search engine also lacked immunity because its results were based on these illegally-structured question-and-answers. (This is a very brief description, so read the opinion below the fold if you want more detail).

As a purely theoretical matter, the decision seems harmless enough. As Volokh explains, Roommates was “channel[ing] the speech in likely illegal directions.” Also, as Crawford notes, the logic of the case could be limited to the more egregious facts of this case. If it is so limited, the decision won’t be that big a'deal.

The problem, though, is that the case will create big problems in the real world. Specifically, it will be impossible to cabin the case’s logic to these specific facts. Vague holdings, like children, tend to grow more expensive through time. If the Supreme Court lets the decision stand, I predict that it will significantly increase litigation and chill Internet activity (e.g., sites like Roommates will be much less efficient as prompts become bulletin boards).

The reason I’m skeptical is that litigation if often done in bad faith. As any real litigator will tell you, the point of litigation isn’t necessarily to vindicate a right, but to harass an opponent with discovery, document productions, and other expensive tactics. So long as a claim is plausible, you can inflict real damage (and maybe get a favorable settlement) even if you think you will ultimately lose.

The beauty of broad, bright-line immunity under Section 230 is that it allows parties to end this type of litigation quickly. If Google or Craigslist gets sued for content its users create, then the companies can immediately file a summary judgment motion (or a motion to dismiss) and end the case before discovery begins. If that line becomes less bright, then it’s harder to shut down frivolous (or at least losing) litigation early.

As Crawford notes, this decision clearly blurs that line. The real-world implication is that litigation will become easier to start and harder to finish. If Google attempts to dismiss a lawsuit, the plaintiff can always respond that broad, expensive discovery is needed to look at the inner workings of the search engine algorithms, or to depose the people who engineered the prompts, or whatever. In fact, the mere potential of expensive litigation will require companies to spend scarce resources on compliance and oversight to make sure their programs don’t cross the line.

Appellate judges need to realize that making bright lines fuzzy vastly increases litigation costs and business expenses. These increased costs are not necessarily a sufficient reason to abandon bright lines. But when you think about the immense benefits of keeping the Internet humming, we need to be very wary of imposing these sorts of costs.

Case below - (by the way, this feature seems pretty cool):

Read this doc on Scribd: fair housing 9th cir

Comments

[Sebastian]

Yup, this case has the potential to be a disaster for free speech on the internet. You used to be able to get out of case like this before even an answer. That might cost a couple hundred to a thousand dollars. Now you are going to have to at least go through basic discovery and a motion for summary judgment. Now we are talking tens of thousands of dollars minimum per case. This is going to get ugly.

[Phil]

OT, but are we going to get any discussion about our Attorney General's little Kabuki dance and the fact that Congress might actually get to call him on the carpet for it?

[Brett Bellmore]

This case is an example of how civil liberties reasoning has gone far into madness.

We get a 14th amendment to stop the Klan from lynching you while your state government looks on with a smile, and now it's used as an excuse to punish you if you advertise that an apartment is only for rent to singles.

Utter madness.

[OCSteve]

Monster.com prompted me for gender and ethnicity the last time I used it. Any of the house lawyers want to help me sue? ;)

[Brett Bellmore]

You won't get any help there: The legal culture approves of certain forms of discrimination in hiring, (Some of the animals are more equal than others.) so permits questions there which are forbidden in other contexts.

[Phil]

So, Brett, it's NOT ok to have preferences or discriminate in hiring, but it IS ok to have preferences or discriminate in renting housing? Interesting.

[cleek]

i will be discussing this outrageous slander with my team of highly-paid and well-oiled lawyers.

and Gary: it's on !

[ajay]

Phil: your question is really just two special cases of the Bellmore Theory of Equality, which states that it is NOT ok to discriminate against Brett, but it IS ok to discriminate in Brett's favor.

[Jesurgislac]

OMG, cleek, you oil your lawyers?

Oil rots latex. I use a water-based lube.

[Ugh]

IIRC its perfectly legal to, eg, refuse to rent a structure that you also live in to someone based on their race, gender, marital status, etc.

And publius, cleek begins with a lower case c, so expect to be a codefendent.

[cleek]

OMG, cleek, you oil your lawyers?

makes it harder for their opponents to pin them, plus they glisten like Greek gods. it's very intimidating.

[Joe P]

I guess I honestly don't see what the issue is. Maybe I'm a special brand of stupid.

It seems to me that if part of Roommates.com's survey asks for information involving children, that would be the same as a house broker asking if you have children.

So... yeah I'm probably just being stupid but that seems like a fairly reasonable stance to come down on. I don't think it's any harder for websites like Craigslist or LiveJournal to file summary judgements on the frivolous stuff than it was before this decision.

[Klerk]

I have to agree with Joe P. This strikes me as a fairly inconsequential decision that does not do much to erode the bright line. It just holds that questions you cannot ask in person, you cannot ask on the intertubes. Indeed, the panel opinion in this case was much broader, but the en banc focuses on this distinction.

Furthermore, the Seventh circuit recently held that Craigslist is immune from a similar suit. See DotD's coverage here.

[Jesurgislac]

So if I'm renting a room in my house to someone - if this theoretical house in theoretically in the US - I am not allowed to ask that someone if they have children, or how many children? If my new roommate just shows up with 3-month-old Susie, three-year-old Danny, and eight-year-old Kerry, as well as a PC, a stereo, and a cat, that's just too bad?

Good grief. I can absolutely see not being allowed to ask about race, religion, sexual orientation: I'd find it a bit dodgy if I wasn't allowed to select "looking for only women as roommates"... but not allowed to ask how many children your new roommate plans to move in?

Boggles the mind.

[Sebastian]

"Furthermore, the Seventh circuit recently held that Craigslist is immune from a similar suit. See DotD's coverage here."

That only means that Craigslist will win such suits if filed in the 7th. Expect all similar suits to be filed in the 9th Circuit instead.

[Ugh]

So if I'm renting a room in my house to someone - if this theoretical house in theoretically in the US - I am not allowed to ask that someone if they have children, or how many children? If my new roommate just shows up with 3-month-old Susie, three-year-old Danny, and eight-year-old Kerry, as well as a PC, a stereo, and a cat, that's just too bad?

No, you can ask that question if you're renting out a room in your house, if IIRC. The same with race, religion, orientation, etc.

[John Thullen]

What most people don't know is that Gary Farber and cleek are roommates as well, so now what could have been confined to a fistfight between consenting adults (I move that "consenting" and "adults" be stricken from the record) is now a stinking federal case.

I hereby disavow and disemvowel
everything I've ever written on the Internets.

I didn't mean it. After all, I'm only twelve years old.

Strike that, it wasn't me at all.

It was DaveC.

Jes:

The stereo belonged to the cat. I told you that. She uses headphones, so what was the big deal?

And yet, you turned me away.

I knew, I just knew, that putting anti-lynching language into the Constitution would lead to this.

Once again, the South comes back around and bites us.

[Jesurgislac]

I like John Thullen's strategy. If DaveC now wrote everything John Thullen ever wrote on the Internets, can I palm everything I ever wrote on the Internets off on to Sebastian?

Ugh: No, you can ask that question if you're renting out a room in your house, if IIRC. The same with race, religion, orientation, etc.

So why is Roommates getting into trouble over it? Aren't they a website for looking for someone to move in with you?

[Ugh]

So why is Roommates getting into trouble over it? Aren't they a website for looking for someone to move in with you?

Now we're getting far afield from my limited knowledge in this area, but I'm guessing it got in trouble because it's not the one actually renting out the rooms. That might be a silly distinction (e.g., if it's legal for me to ask question X, why is it illegal for me to have someone else ask it for me), but I think that's what it is.

[sophie brown]

This is two competing pieces of legislation, and I think the way the case was decided was really the only logical way. Absolute 100% immunity for the provider, however it directs the questions, would be a slippery slope all its own.

Concerns about the case holding devolving into a free speech nightmare can be addressed by amending one of the pieces of legislation.

[Klerk]

@ Sebastian 10:20. You are obviously right that the seventh's decision is only binding there. I was just pointing it out as narrow persuasive authority. Indeed, this ninth Circuit opinion explicitly holds that a function like Craigslist would be immune in the Ninth Circuit as well. See especially the extended discussion in footnote 33 (pages 24-25 of the pdf).

[J.B.]

That only means that Craigslist will win such suits if filed in the 7th. Expect all similar suits to be filed in the 9th Circuit instead.

Before you start theorizing about a circuit split and forum shopping, it might be worth asking whether Craigslist actually does the thing that Roommates got dinged for in this case. (Hint: the answer is no.)

[Charles D]

I'm confused here. Certainly if Roommates.com was involved in violating the Fair Housing Act because it appeared to require illegal information from its users, then let them pay. However, if (as the site name implies) Roommates is pairing potential roommates - in other words the landlord is a 3rd party and the tenant is seeking someone to share their living space - how is that a violation of the law?

There is also, it seems to me, a big difference between a web site having users fill out a form that will then be stored in a database (Roommates, eHarmony, etc.) and Joe Blogger ranting about someone who pisses him off in his blog. In this case would the user have entered the offending information if the site's form design had not implied that it was necessary or beneficial to do so?

While this sounds OK to me, I'm not a lawyer obviously, there's no way to determine how some right-wing nutjob judge will "interpret" this ruling in the future. The answer is not to allow the web to be like the wild west, the answer is to get these wingnut corporatists off the bench.

[Gary Farber]

"We get a 14th amendment to stop the Klan from lynching you while your state government looks on with a smile, and now it's used as an excuse to punish you if you advertise that an apartment is only for rent to singles."

I take it, Brett, that you're just fine with discriminating against people with children?

It's a somewhat borderline issue, I agree.

OCSteve:

Monster.com prompted me for gender and ethnicity the last time I used it. Any of the house lawyers want to help me sue? ;)

Brett:

You won't get any help there: The legal culture approves of certain forms of discrimination in hiring, (Some of the animals are more equal than others.) so permits questions there which are forbidden in other contexts.

?

I have no idea about "the legal culture," whatever that means, but the law forbids discrimination in housing or employment on the basis of gender, race, creed, color, and so forth, depending on precisely on which state you're in as regards all the relevant categories.

It helps to stick to facts when asserting a matter of fact, and checking the facts when one is in any doubt, if I might suggest.

Cleek: you ignorant slut! Just how ignorant a slut are you, and how slutty? I think we all know.

Lawsuit!? Only a coward like you, who dodged the draft, and is, I hear, a chronic masticater, would choose such a thing.

I insist you have your seconds call upon my seconds by tomorrow morning, or I'll have to find some seconds, or, even better, be leaving Colorado shortly, where you won't be able to find me.

Slut.

Honkey.

[Ugh]

I take it, Brett, that you're just fine with discriminating against people with children?

It's a somewhat borderline issue, I agree.

The wife and I stayed at a small resort in Florida last weekend that didn't allow kids. Man was it nice and quiet.

[Justin]

Publius,

This decision seems eminently correct to me as a matter of statutory interpretation. Note that it expressly does not decide First Amendment grounds. If you dislike it as a point of policy, you are free to lobby Congress to change the law.

[cleek]

sir, you have dishonored ignorant indie-rock sluts everywhere. i demand satisfaction!

pistils at noon!

or pizzelle at nine, if you prefer.

[Nell]

Is it just my slow-to-just-about-freezing-up dialup, or has Gary's site disappeared? I tried to visit just before reading this post, which added to the eeriness.

[Anarch]

He's taking his evasion of cleek very seriously.

[cleek]

Is it just my slow-to-just-about-freezing-up dialup, or has Gary's site disappeared?

it's up for me.

(also)

He's taking his evasion of cleek very seriously.

he will fail.

[Brett Bellmore]

Do you folks really want to live in a world where everything that's not manditory is forbidden? Just because I think people have a right to do something doesn't mean I think they should do it.

But, for the record, my wife's got a bun in the oven, and I still think it's reasonable to discriminate between renters on the basis of whether or not they have children. The melanin content of your skin, little rugrats running around; One of these is radically different from the other.

[Gary Farber]

"he will fail."

Find me not in the swampy heat of Dagobah, by end of May, he will!

Not in the Southeast U.S., ever, eeeeheeeheeeheeeheeeheh.

This is not the droid Gary you are looking for.

But I have little stamen-(a) remaining for this exchange. May Patti Smith save me.

Slut.

[John]

Brett - what does that have to do with the issue in this case? The fact that you don't like the Fair Housing Act, in general, really has nothing to do with whether the 9th Circuit has interpreted that act reasonably in this case.

[Gary Farber]

"Do you folks really want to live in a world where everything that's not manditory is forbidden?"

Fallacy of the excluded middle.

Also, I'm reasonably sure few folks would answer other than "no," just in case that wasn't pointless rhetoric.

[farmgirl]

I'm really enjoying the smackdown publius structured between cleek and Gary Farber.

Can we hope that Thullen, perchance, might be embroiled in the ongoing legal case?

[trilobite]

So why is Roommates getting into trouble over it? Aren't they a website for looking for someone to move in with you?

Now we're getting far afield from my limited knowledge in this area, but I'm guessing it got in trouble because it's not the one actually renting out the rooms.

Also note that the court did not decide that the Fair Housing Act applies, or could conceivably apply. The only issue on appeal in this case, for whatever reason, was whether the case could be thrown out without even looking at the FHA just because the alleged bad acts consisted of asking questions on a website.

I think publius's worries are needless. I don't think the courts, including the 9th Circuit, want to narrow ISP immunity, and I don't at first glance see a way to make a valid pleading out of neutral prompts. To the extent that there is any ambiguity there, it should be resolved with another case.

If I'm wrong, please consider that this post was actually written by Jesurgislac.

:)

[trilobite]

Gee, I thought I put in italics. Oh, well. The first 2 paragraphs of the above post were a quote.

[Anarch]

If I'm wrong, please consider that this post was actually written by Jesurgislac.

Who is really Sebastian who -- it turns out -- was really Fafnir all along.

[rea]

if I'm renting a room in my house to someone - if this theoretical house in theoretically in the US - I am not allowed to ask that someone if they have children, or how many children?

Generally speaking, there are exceptions to statutes like this for intimate living situations, like your spare bedroom. Otherwise, picture yourself in a bar at closing time, unable to ask that person you're asking to come home with you about his or her gender . . . :) .

Also, even as a commercial landlord, you can legitimately ask (and limit) how many people will live in the apartment you are renting. You just can't ask about marriage, or children.

[felix culpa]

Obsidian Wings is a hall of mirrors shading into the shadowy vastness of interstellar space where identities are wormholes and wormholes are faster than public transit, Fafnir has tentacles, many many tentacles, thousands of leagues long, and Thullen gets all the cute chicks.
Somewhere over the rainbow, why then oh why?

[Sebastian]

"If I'm wrong, please consider that this post was actually written by Jesurgislac.

Who is really Sebastian who -- it turns out -- was really Fafnir all along."

I'm not Jesurgislac, who told you about that! I mean, hahahaha. :)

[bitchphd]

Can't agree: I think the content creation here was on the part of the site itself, not the posters, and it makes perfect sense therefore for the site itself to be held liable.

I don't care if doing so makes the internet less "efficient"; efficiency isn't, and shouldn't be, the be-all and end-all.

[Phil]

Do you folks really want to live in a world where everything that's not manditory is forbidden?

No, I want to live in a world where even people with children receive equal treatment under the law.

[md 20/400]

I can't say I'm upset about this decision. You can't even place an ad in a paper to share a room/apt/house and specify whites only. Heck, the fine print at the bottom of the Washington Post's classifieds says they can't legally take these ads and to complain here's the HUD phone number.

[OCSteve]

bitchphd: Can't agree: I think the content creation here was on the part of the site itself, not the posters, and it makes perfect sense therefore for the site itself to be held liable.

Content creation in this context likely meant a couple of analysts who designed the site. They may or may not have had kids or cared about kids one way or the other. The programmers certainly didn’t care one way or the other. Is it your standard that every website of this nature should have a ($$$) legal review so they can avoid such silly (IMO) lawsuits?

Knowing my nephews, I would never rent to my sister. If I would not rent to her, I certainly would not rent to anyone with kids. If I couldn’t figure that out from the application I would from the interview, where there is no paper trail.

Again – Monster asked me my gender and ethnicity. Who here wants to help me sue them? That is “content creation … on the part of the site itself”.

In the real world of course, if we don’t like the name "DeShawn" on a job application we just don’t call them for an interview. If we call in “Pat” for an interview and he turns out to be a she there is bound to be some reason not to hire her. So going after what seems to be at best a PC over-reaction on one side and a minor oversight on the other seems to be rather lame.

Ease up.

I don't care if doing so makes the internet less "PC"; PC isn't, and shouldn't be, the be-all and end-all.

[Gary Farber]

Again – Monster asked me my gender and ethnicity. Who here wants to help me sue them? That is “content creation … on the part of the site itself”.

And the law is the law. What is your point? Are you attempting to demonstrate that these laws are bad? Or are you simply asserting that as your personal opinion? Or what?

"In the real world of course, if we don’t like the name...."

Yes, discrimination is easy to get away with, and difficult and expensive to prove: again, might I ask your intended point, please?

"Ease up."

Why? Is not being able to obtain an apartment or job because of discrimination something we should all relax and care less about? Really?

Why?

"I don't care if doing so makes the internet less 'PC'"

I don't want to make any assumptions, but have you considered the possibility that you might care more if you yourself had found yourself encountering blatant discrimination in finding a job or dwelling? Or would you welcome advice to "ease up" and not care so much?

Thanks for any response, Steve.

[Brett Bellmore]

Yes, these laws are bad. You have a right to vote. You don't have a right to rent a particular somebody's apartment; It's their property, not your's. You have a right to free speech. You don't have a right to force somebody to employee you; That's just slavery with reversed polarity.

I'm willing to say it: The civil rights movement went horribly wrong, when it progressed from getting rid of government mandated discrimination, to demanding government mandated non-discrimination. They ceased being a force for liberty, and became an enemy of freedom.

Private discrimination doesn't have to be admirable to be a right. It's not terribly admirable if you only are willing to date, or consider marrying, in your own race; We got rid of laws banning interracial marriage, should we 'progress' to mandating it?

That a particular exercise of liberty is not very admirable doesn't change the fact that banning it is a reduction of human liberty. Between what's admirable, and what's mandated, between what's despicable, and what's banned: That's where freedom exists. Those who want to ban all they think bad, mandate all they think good, are the enemies of human freedom, and excluded middle be damned, there's no logical stopping point for their crusade, once they've started on it, short of that dystopia. Nothing but the push back from people who object stops them from going there.

[Jesurgislac]

Brett: I'm willing to say it:

We know that: you've been saying it for as long as I can remember whenever this topic comes up on Obsidian Wings. You want the freedom to discriminate against people who aren't white: specifically, you want to ensure that black people only get jobs, university places, etc, if there is no white person who has applied and who will be denied if the black person gets in.

[Brett Bellmore]

And all the time I've been saying it, you've been persistent about reading anything I wrote in the worst possible terms, even if you had to do great violence to what I actually wrote.

"specifically, you want to ensure that black people only get jobs, university places, etc, if there is no white person who has applied and who will be denied if the black person gets in."

What I want is to live in a free country. What I recognize is that this implies that people will be free, within broad limits, to do things I disapprove of.

BTW, does it strike you as the least bit ironic that we could take your above statement of my supposed racist desires, swap "black" for "white", and get public policy at many universities? Personally, I'd prefer that hiring and admissions be a straight meritocracy. Where government funds are involved, I believe that to be constitutionally mandated, much to the annoyance of folks who think racial discrimination in one direction is an evil, and in the opposite good public policy.

[rea]

Shorter Bellmore: "Segregation now, segregation tomorrow, segregation forever!"

[Bruce Baugh]

Jes, I think you're being really unfair to Brett. I'm sure he'd have no problem with brown and black people being treated just as equal for, say, custodial jobs, or day labor. It's only matters that involve the exercise of authority, decision-making, and knowledge that need to be saved for the smarter folks.

[Brett Bellmore]

Interesting how so many assume that thinking that private sector discrimination ought to be legal implies that you want to practice it. You DO realize, I hope, that this is the exact reasoning that leads right-wingers to claim that the ACLU is a nest of pedophiles?

[Jesurgislac]

Brett; Interesting how so many assume that thinking that private sector discrimination ought to be legal implies that you want to practice it.

That's because when private sector discrimination was legal, people practiced it openly: now it's illegal, people practice it covertly. It's not really "interesting", it's more a kind of infuriating commonplace.

And, with regard to your scream about the ACLU: no.

[Phil]

Yes, it sure is amazing that when someone's constant hobby horse is that the white man just can't get an even break in America, everyone assumes he's a racist. Can't imagine where it comes from.

[Brett Bellmore]

Just like when somebody's hobby horse is abortion rights, it's assumed they get off on the idea of babies being killed, Phil. A logical falacy in every case.

Actually, the white man pretty much does get an even break in America, it's the Asians who get screwed over by affirmative action.

Jes, I like the ACLU, though they can be infuriatingly inconsistent and self-rightious. But, yes, that IS one of the slams against them, and it's based on the exact same reasoning you're using: That if you defend conduct as constitutionally protected, it's because you approve of it. No, sometimes you just think people have a right to be creeps.

[Jesurgislac]

That if you defend conduct as constitutionally protected, it's because you approve of it.

You have made clear in past threads what you approve and disapprove of, Brett: you don't approve of a black person getting a college place - or a job - that a white person wants.

[Brett Bellmore]

You, Jes, have made it clear in past threads that you're utterly incapable of reading simple declarative sentences in English, if a clear reading of them would fail to conform with your intellectual predjudices. The thread you linked to demonstrates this.

[Jesurgislac]

Brett, I think you should note that others took exactly the same meaning I did from your "simple declarative sentences in English" about restricting black access to education, I recommend to your attention 40 Years Later: The Unrealized American Dream (link goes to BitchPhD's blog, because the direct link opens a PDF file). In particular, I recommend that you consider:

College graduation rates for African Americans have increased at a slower pace than high school graduation rates. But there has still been significant progress in bridging the racial divide in higher education. The African American college graduation rate has increased by almost 400% since 1968. In 1968, the Black graduation rate was 41% of white rate. Today it is 61%.5 Yet at this rate, the United States will not have equality in college graduation between Blacks and whites until 2087. (pg7)

[Brett Bellmore]

"your "simple declarative sentences in English" about restricting black access to education,"

I wrote no sentences, simple or complex, about "restricting black access to education". Your belief that I did is part of this mental block you're suffering from. I am in favor of a strict meritocracy as far as college admissions are concerned. (Though I'm willing to concede that private institutions have a right to discriminate. It's a right they shouldn't exercise...) It's hilarious that you read my opposition to racial discrimination you happen to approve of as advocacy of racial discrimination. Humor of the Lewis Carrol sort.

[Bernard Yomtov]

I'm willing to say it: The civil rights movement went horribly wrong, when it progressed from getting rid of government mandated discrimination, to demanding government mandated non-discrimination. They ceased being a force for liberty, and became an enemy of freedom.

This seriously misunderstands the source of discrimination. It is a common mistake among some libertarian-minded individuals, who are caught up in trying to prove that the problem was the government, not the people.

The implicit assumption is that segregation existed only because some state governments, for mysterious reasons of their own, unrelated to public opinion, mandated it. Not so. Absolutely not so. Racial discrimination laws, at least in the South, were hugely - overwhelmingly - popular among whites, who of course were the only ones allowed to vote. Racism was primarily a social system, not a legal constraint

In other words, eliminating Jim Crow laws in and of itself would have done little to eliminate racial discrimination. It was necessary to outlaw discrimination itself. Consider, for example, that there were very few laws requiring that employers discriminate in hiring, yet the practice was extremely common.

So to say that the Civil Rights movement "went horribly wrong" when it insisted that government mandate non-discrimination is to say it went horribly wrong when it began to be effective.

Does forbidding discrimination infringe on individual liberty? Yes. So what? So does forbidding public urination. The model this argument has in mind is that there is some idiosyncratic lunatic somewhere who won't serve redheaded people in his restaurant, and we shouldn't force him to. OK. But you need to distinguish between that and systematic widespread, nearly universal (in some areas) racial discrimination in employment, access to public facilities, education, and so on. Those practices were a vastly greater infringement on liberty than telling the owner of a barbecue joint he has to serve blacks, like it or not.

The fact that there are apparently intelligent people who can't see the difference is stunning.

[SamChevre]

Good grief. I can absolutely see not being allowed to ask about race, religion, sexual orientation: I'd find it a bit dodgy if I wasn't allowed to select "looking for only women as roommates"... but not allowed to ask how many children your new roommate plans to move in?

Actually, the law is saner than this, in a particularly crazy way.

As long as it's a room-mate situation (not a rental of a separate dwelling), you are legally allowed to discriminate on otherwise-protected grounds. You can refuse to rent to men, or blacks, or people with children.

What you CANNOT do is advertise these criteria.

[kenB]

there is some idiosyncratic lunatic somewhere who won't serve redheaded people in his restaurant, and we shouldn't force him to. OK. But you need to distinguish between that and systematic widespread, nearly universal (in some areas) racial discrimination in employment, access to public facilities, education, and so on.

This I think is absolutely true -- people exercising their right to free association is no big deal and shouldn't be the government's concern, *unless* the aggregate effect of all those independent decisions is genuine hardship for a class of people.

However, I think there are intelligent people *on both sides of this argument* who miss the distinction. Some people on the left argue for anti-discrimination legislation from the standpoint of morality rather than pragmatics.

[Bernard Yomtov]

KenB,

Glad you agree.

We may differ as to just how much hardship needs to be imposed on just how many people before govt can intervene, but leave that for another day.

[Anarch]

If you want a definition of "white privilege", you could do worse than this:

Actually, the white man pretty much does get an even break in America...

[felix culpa]

OCSteve—doing so makes the internet less "PC"
Didn’t PC almost kill AOL? Seems like a bit of a stretch, putting ‘PC’ and ‘internet’ in the same sentence.
And speak of stretches, there's no logical stopping point for their crusade, once they've started on it, short of that dystopia. Nothing but the push back from people who object stops them from going there. Seems a bit odd, following hard on the heels of exposition of a logical fallacy. Might this be called the Fallacy of Hysterical Proclamation?
As I said, shadowy reaches of interstellar space, wormholes, all that.

[liberal japonicus]

I have to admit, the 'hardship' test, though logical, fails on one level. The 'idiocyncratic lunatic' can represent a case of Overton's window, where their expression has people shift their ideas of what is possible and permissible.

The ultimate problem is that we are asking the government to create a social climate, something which a conservative would say is not the government's job. But given the fragmentation and decentralization of society, I'm not sure who else we turn to create that social climate. Certainly the social network that occurs on a local level would be a finer and more suitable mechanism if we could depend on it to come up with results that weren't problematic. But I'm not sure if we can.

Thus, dealing with the isolated lunatics might be important in order to prevent more people from becoming like that. I realize that there is a fine line, but mandating that no lunatic be bothered is as problematic as requiring all lunatics to conform.

[Bruce Baugh]

There seems to be some reason to believe that more robust and consistent social presence by the government encourages and supports other institutions, formal and informal. People who aren't panicking over their livelihood and health are at more liberty to think about organizing themselves together this way or that.

[dr ngo]

I am in favor of a strict meritocracy as far as college admissions are concerned.

The fact that Brett can say this (as a throwaway line) in apparent seriousness speaks volumes about his understanding of both race relations and higher education.

"Strict meritocracy" based on what??

[Anarch]

Higher Truth.

[John Thullen]

Higher Truth:

Which, translated into American, reads, "Hey, I got screwed!"

[Phil]

The ultimate problem is that we are asking the government to create a social climate, something which a conservative would say is not the government's job.

Well . . . unless it's in the interest of protecting adults (in the guise of "protecting children") from being exposed to boobies or swears. Then, it's not only government's job but its obligation to act as censor.

[Bernard Yomtov]

Lj,

I see your point. "hardship" might indeed be the wrong standard. For example, I don't think a restaurant, even one in a big city, ought to be allowed to refuse service to blacks, even though, in 2008, that probably wouldn't inflict much hardship. Best to keep that can of worms tightly closed, which I suppose is another way of making the Overton window argument.

Still, I think there has to be some scope for individual preference, as there is in choosing a roommate. Should we force our lunatic to do business with someone against whom he has a personal grievance?

[DaveC]

Some states by law discriminate against smokers and deny them the right to smoke in businesses like bars, and not just inside public facilities like museums or courthouses. So that is a case of the majority taking away peoples' freedom of choice about what they can do in private.

One alternative to allowing smoking is to provide bowls of peanuts, and allow customers to throw the peanut shells on the floor. But where then is the protection for people with peanut allergies? The establishments that have the peanuts present an immediate danger to those people allergic to peanuts, far more dangerous than second-hand smoke. Maybe those bars could have a peanut eating area outside, fifteen feet from the door, for those inclined to eat peanuts.

[Brett Bellmore]

I'd say it speaks volumes about somebody's conception of education, when you say you're in favor of strict meritocracy, and they can't understand what it could be based on.

[Phil]

Well, if you could explain to us all which classes of people do not merit being educated it would probably help us out quite a bit.

[Bernard Yomtov]

they can't understand what it could be based on.

Or maybe there's a lot of different things it could be based on, and the question is how you measure "merit." Maybe "merit" just possibly has more than one dimension, or maybe policies that are not strictly meritocratic on an individual level end up being more so in the aggregate. Or maybe the institution's purposes are best served by an admissions policy that does not strictly select applicants based on some one-dimensional ranking.

[Sebastian]

"Maybe "merit" just possibly has more than one dimension, or maybe policies that are not strictly meritocratic on an individual level end up being more so in the aggregate."

Perhaps, but since the other dimensions actually used in affirmative action in college admissions are 'race' and 'gender' your response is almost entirely theoretical.

[Jesurgislac]

Sebastian: but since the other dimensions actually used in affirmative action in college admissions are 'race' and 'gender'

Actually, the "other dimensions" are considerably more complicated.

For example; a white man certainly couldn't get any part of the 20 points Michigan assigns to "Underrepresented Racial/Ethnic Minority". But he could get 4 points for having a parent who went to Michigan U, 10 points for being a Michigan resident, and 10 points for having gone to a high-ranked school. None of which has anything to do with race or gender or intellectual ability.

All of which I recall reading in news stories about a famous case at Michigan U, and all of which is, in any case, available online for anyone interested enough to look into what other dimensions are actually used in affirmative action in college admissions, as opposed to just listening to segregationists grouse about affirmative action "letting" black students in to universities when a white student might be denied admission.

[liberal japonicus]

Should we force our lunatic to do business with someone against whom he has a personal grievance?

Bernard,
Well, just speaking off the top of my head, there should be some 'my house/apt is my castle', which seems like a good line in the sand. But when I see 'forced to do business', I think that the state provides the structural framework to do business, so it should be able to dictate some conditions.

This is getting a workout here in Japan and here are some links that might be of interest
link and link

[Bernard Yomtov]

Perhaps, but since the other dimensions actually used in affirmative action in college admissions are 'race' and 'gender' your response is almost entirely theoretical.

Why do you choose to criticize only affirmative action, rather than discussing the admissions process as a whole? And why is it OK to grant preference on the basis of some parental traits (being alumni) but not others (being black)?

Further, you seem to be saying that there is a dimension called "merit," which can be measured and is appropriate to use, and others, such as race and gender, which are inappropriate.

But one point of my comment was that, leaving affirmative action aside, "merit" is not easily measured; indeed that there are many cases where two applicants simply cannot be directly compared on meritocratic grounds. Would you prefer a hard-working average applicant to a lazy but brilliant one, even if the latter had better grades and test scores? All else equal, do you prefer the pianist to the painter?

[dr ngo]

I'd say it speaks volumes about somebody's conception of education, when you say you're in favor of strict meritocracy, and they can't understand what it could be based on.

Geez. I've only been involved in higher education, as student or teacher, since 1960. I suppose I've missed something. But I've never seen anything approaching a consensus as to what constitutes "strict merit[ocracy]" in any measurable sense, as opposed to "I know it when I see it," which all of us have been tempted to use from time to time.

Standardized tests? Well, there's considerable evidence that they are culturally, if not racially, biassed. But leaving that aside, what they test is - guess what? - the ability to do tests. Fortunately I was very good at this, back in the day, and that gave me an important boost in my early career. But I would be a fool if I thought that they were a unique measurement of "merit." (And every college admissions board worth anything knew that they were not the most reliable predictor of academic success anyway.)

High school grades? Valuable, yes, but even before massive grade inflation set in, their value varied enormously with the quality of, and standards set by, the various high schools from which applicants graduated. Which in turn correlated - are we surprised yet? - with race/ethnicity in part.

Recommendations, prizes, and special projects? Potentially useful, but not even remotely comparable as indices of "merit."

So what we've had - what we've ALWAYS had - is a complex field for negotiation, for the arguing (sometimes cases by case, when it comes down to it) of competing "merits." This is by no means to say that it's meaningless; but it's never simple.

To say that college admissions should be based simply on "merit," unspecified, is as foolish as to say the same thing for the winner of the Miss American Pageant, or the Nobel Prize, or the Most Valuable Player of whatever your favorite sport it, or the greatest composer of all time. (Who happens to be Bach, by the way.) There simply is no acceptable metric for "merit."

And we haven't even entered the broader philosophical question of the purpose of college admissions anyway. Is it simply to reward individually the "best" applicants, however that term is understood (see above), or is it to create the best possible student body - not necessarily the same thing, if we value diversity and/or special skills like playing basketball or the oboe - or is it to make the maximum contribution to the world, or at least to the society that, in the case of a state school, is paying for it? Different aims, different "merits."

Thus to argue for "strict meritocracy" suggests two possibilities:

1) You have simply not thought about all of the implications (as those of us in the business have had to), i.e., you are an intellectual "newbie" in the field,

OR

2) You have decided that YOUR definition of "merit" trumps all others, in spite of the evidence that it (whatever it may be) is not universally valid, i.e., you are fundamentally a fundamentalist, whose Truth Cannot Be Gainsaid.

Which are you, Brett?

[Matthew G. Saroff]

I think that this hand wringing is 6 pounds of shit in a 5 pound bag.

The immunity is supposed to be like that of a bookstore, which may carry a publication that illegally discriminates, but does not itself publish.

Roomates.com is a bookstore which publishes a news letter which accepts ads that say "no n***ers" in its real estate listings.

The internet is not an excuse to break the law.

[dr ngo]

Well, that clears everything up!

[John Thullen]

The meritocracy gave us the war in Iraq and the sub-prime mortgage financial mess.

Or was it the elites?

I get them mixed up.

I say we give stupid people a shot for a change.

[OCSteve]

Gary: And the law is the law. What is your point? Are you attempting to demonstrate that these laws are bad? Or are you simply asserting that as your personal opinion? Or what?

What, I guess. Website A. Well known. Asks questions that a company could never ask on a job application or in an interview. Race and gender. I raise the point once, twice, no takers. Silence, and then you with “do you mean A, or B, or what?” I mean just what I posted… just as I posted it…

Website B. Asks a common sense question that has nothing to do with age, gender, race, sexual orientation – any other possible –ism. Panties wadded up all over. WTF? If I am looking to rent, the number of rug-rats in the building is a serious consideration. If I am the landlord – it is 10x more consideration than that.

again, might I ask your intended point, please?

If I wrote it out again the keystrokes would come out just the same. To try to clarify: I think kids are cute – the young ones – for short periods of time. It’s like the zoo. I like to visit. They can be cute, especially at feeding time. I don’t want to bring one home with me. Race and gender are not a choice. Having kids is. You have kids voluntarily (yes accidents count). Renting to someone with a kid should be 100% voluntary. If I’m a landlord and you have kids – move along…

Why? Is not being able to obtain an apartment or job because of discrimination something we should all relax and care less about? Really?

Not wanting kids in your building is now discriminatory? Really? You want to stand by that? How about an “adults only” resort or a “senior community”?

I don't want to make any assumptions, but have you considered the possibility that you might care more if you yourself had found yourself encountering blatant discrimination in finding a job or dwelling?

Sure. I’m selfish. I’ve admitted that. I’ve come to terms with that. It would piss me off. But again, kids are a choice. You know what – owning a pet is a choice. Do you have any idea how it limits where you can live or where you can get a hotel for the night all over the country? I deal with that. Is a pet equal to a kid – to me yes. You can get a room or an apartment a heck of a lot easier with a kid than with a dog. Both are choices. I accept the landlord’s decision and look somewhere else.

felix culpa: And speak of stretches, there's no logical stopping point for their crusade, once they've started on it, short of that dystopia. Nothing but the push back from people who object stops them from going there. Seems a bit odd, following hard on the heels of exposition of a logical fallacy. Might this be called the Fallacy of Hysterical Proclamation?

I’m still trying to get a handle on you so I honestly do not know how to respond. I enjoy reading what you write. The words are pleasant to read. There are undertones to the undertones… Sometimes pleasant, sometimes dark, sometimes beyond my ability to grok. Sometimes it is kind of like how I imagine Thullen would be on a bad acid trip… I do like reading your comments, I’m just not always sure what the heck they mean…

Phil: Well . . . unless it's in the interest of protecting adults (in the guise of "protecting children") from being exposed to boobies or swears. Then, it's not only government's job but its obligation to act as censor.

Well…. First, I really like boobies, and I have great respect for a good cuss (and boobies). But when you hear “it’s for the children” it is most often a D saying it.

[Sebastian]

Why do you choose to criticize only affirmative action, rather than discussing the admissions process as a whole? And why is it OK to grant preference on the basis of some parental traits (being alumni) but not others (being black)?

I'm sorry, where did I say that was ok?

Further, you seem to be saying that there is a dimension called "merit," which can be measured and is appropriate to use, and others, such as race and gender, which are inappropriate.

Well yes. Are you saying that there is no such thing as merit? Honestly? Really???

But one point of my comment was that, leaving affirmative action aside, "merit" is not easily measured; indeed that there are many cases where two applicants simply cannot be directly compared on meritocratic grounds. Would you prefer a hard-working average applicant to a lazy but brilliant one, even if the latter had better grades and test scores? All else equal, do you prefer the pianist to the painter?

Not being 'easy' isn't the same as impossible. Saying that the SAT isn't entirely perfect at sorting people by 'merit' isn't the same as saying that is useless. Yet in Michigan, being black is worth twenty points for the purpose of admissions while the difference between getting the worst possible SAT score and the best possible SAT score is only twelve.

Are you arguing that the SAT is SO USELESS in terms of academic merit that the difference between the worst possible grade and the best is almost half that of race?

Also 20 points is the difference between a 'C+' student and a 'B+' student. Are you saying that grades are SO USELESS in terms of academic merit that the difference between C+ and B+ is totally erased by race?

I'm perfectly willing to admit that hairline differences in academic merit aren't likely to show up on tests, but we aren't actually worrying about hairline differences.

"All else equal, do you prefer the pianist to the painter?"

All else isn't equal, the phrase always comes up in these discussions, and it has no logical connection to affirmative action as it actually plays out in college admissions. The difference between the worst and best possible scores on the SAT isn't meaningless in terms of academic merit.

[Sebastian]

"Phil: Well . . . unless it's in the interest of protecting adults (in the guise of "protecting children") from being exposed to boobies or swears. Then, it's not only government's job but its obligation to act as censor."

Sure, but that is every bit a Democratic Party game. Tipper Gore's anti-rock crusade anyone? Hillary Clinton's anti video game crusade?

[Phil]

Well…. First, I really like boobies, and I have great respect for a good cuss (and boobies). But when you hear “it’s for the children” it is most often a D saying it.

Uh huh. Tell me, OCSteve, the Parents Television Council? You know, the loudest, most visible and vocal television monitoring group? The one that's always complaining to the press about the this and that on television? Who runs that? Brent Bozell, right? He a Democrat these days?

Despite the popular impression, Republicans just about invented "We have to protect our children from X." It's not for nothing that every single fundagelical right-wing flake group is named the "Parents This" and "Family That."

You can get a room or an apartment a heck of a lot easier with a kid than with a dog.

And yet, interestingly, it's legal for landlords to charge all kinds of additional, nonrefundable deposits and even extra monthly rent for pets, but not for kids. Pet peeve of mine. (No pun intended.)

[Phil]

Ha ha ha. OCSteve and Sebastian ran for the same tree at the same time! Hope you two didn't knock heads under there.

Hillary I'll give you. (And Lieberman, to the extent that he's even a Democrat, which . . . not so much.) Tipper Gore was 20 freakin' years ago. These days, when it comes to attempted broadcast censorship of cusses and boobies, it's just about 100% the Republicans and you both know it.

Or are you going to both seriously defend the idea that it's the Democrats who want to charge CBS stations millions of dollars for Janet Jackson's boobie, or want to fine NBC millions of dollars for Bono saying "fnck" during an awards acceptance speech? Etc., etc., etc.

[Phil]

Oh, and as far as the legacy of Tipper and the PMRC, what's the biggest instigator of music censorship these days? Thaaaaaat's right, it's those liberal Democrats over at Wal-Mart.

Seriously, do you guys go to bed at night actually believing these things?

[John Thullen]

OCSteve:

"Sometimes I think it is kind of like how I think Thullen would be on a bad acid trip."

I've been meaning to say, and I mean what I say, but if any of you come up with other, better meanings, then that is what I meant.

I get felix culpa, I think, and he gets me.

On the other hand, he may not want to be gotten, or got, or groked, being a hopeless romantic, and not liking a puzzle that can be solved, but getting the fishing part of fishing, not the fish.

In fact, I'm thinking, and on the cusp of meaning, that felix culpa and I need to pal around. I would like him to enter rooms before me and explain what's coming.

I'd do the same for him.

But I don't think I could explain what's coming because I have a feeling he's hoarding some of the original Owsley acid and has seen stuff my acid couldn't.

He's immature before his time and for his age. Which makes us the same age.

[OCSteve]

Phil: Uh huh. Tell me, OCSteve, the Parents Television Council? You know, the loudest, most visible and vocal television monitoring group? The one that's always complaining to the press about the this and that on television? Who runs that? Brent Bozell, right? He a Democrat these days?

I’d call them extremists and whackos. I’d no sooner claim them then I would expect you to claim [insert leftist extremist group here]. I get upset when they (CBS) blur out a little “nip slip” or butt crack on Survivor. Heck – that’s why I watch Survivor…

And yet, interestingly, it's legal for landlords to charge all kinds of additional, nonrefundable deposits and even extra monthly rent for pets, but not for kids. Pet peeve of mine. (No pun intended.)

Are we disagreeing here?

Or are you going to both seriously defend the idea that it's the Democrats who want to charge CBS stations millions of dollars for Janet Jackson's boobie, or want to fine NBC millions of dollars for Bono saying "fnck" during an awards acceptance speech?

I can only speak for myself, not Sebastian. That was stupid. Dumb. Reprehensible. Did I say stupid?

[OCSteve]

Phi: Seriously, do you guys go to bed at night actually believing these things?

By the time I go to bed at night, I hope to believe in nothing at all: nothing good that will disappoint me, and nothing bad that will meet my expectations. Just … nothing. I get the best night’s sleep that way.

John Thullen: I readily admit I was chumming the waters there. ;)

[ral]

OCSteve, perhaps you could use the assistance of an Electric Monk.

The Electric Monk was a labour-saving device, like a dishwasher or a video recorder. Dishwashers washed tedious dishes for you, thus saving you the bother of washing them yourself, video recorders watched tedious television for you, thus saving you the bother of looking at it yourself; Electric Monks believed things for you, thus saving you what was becoming an increasingly onerous task, that of believing all the things the world expected you to believe.

[yet another example of my free association, a right not guaranteed by the Constitution]

[Bernard Yomtov]

I'm sorry, where did I say that was ok?

When you said the main things other than merit that were taken into account were race and gender, and ignored legacy preferences.

Are you saying that there is no such thing as merit? Honestly? Really???

Of course not. Did you read my comment?

Not being 'easy' isn't the same as impossible.

True, but some comparisons are in fact impossible to do in a rigorous fashion. I note you did not respond to my question about the lazy genius vs. the hard-working average student. Which is the more meritorious? Given your emphasis on SAT scores I take it you vote for the genius, but is that merit? Even worse, is having parents who can afford SAT tutoring merit?

All else isn't equal, the phrase always comes up in these discussions, and it has no logical connection to affirmative action as it actually plays out in college admissions.

Here you are, obsessing about affirmative action again, and you wonder why I think that's your only concern. The point is not that all else is going to be equal, but rather whether you are going to give weight to (shudder) non-SAT considerations and if so, how much, and why that is not a totally arbitrary decision.

[felix culpa]

OCSteve— Thanks for the pleasing crit; I wouldn’t go so far as to say the ambiguity is actually INTENTIONAL...
Any resemblance to Thullen is gratifying; the bad acid...the bad acid...um, what?
Just be grateful you don’t understand.

I sure don’t.
Resisting, like dutch, the impulse to map my dystopia, only I’m not no bleeding avatar fabulist, All the weird stuff, I don’t make it up. Weird just is. Being crazy helps, which is probably where I lose you.

Anyhoo, it was just that no logical stopping point for their crusade thing sounded maybe a little hysterically over-the-top alarmist rantish which is probably how you meant it, joke-like, but I was responding on the surface statement-of-forthright-factuality level and since you’d just been demonstrating your mastery of logic and its offspring I thought following that with a logical howler was pretty OTT and I leaped to rescue logic from your deformed grasp.
Plus I really liked the way it rounded off my comment.
Also, what is IIRC?

[Bernard Yomtov]

LJ,

I think that the state provides the structural framework to do business, so it should be able to dictate some conditions.

Yes, but aren't we discussing what those conditions should reasonably be?

[felix culpa]

Also I refuse to use emoticons unless it’s a world-historical emergency, subjectively judged, and that probably contributes to the air of mystery. Besides, it could get ugly. An emoticon on acid in a dark alley? Bad juju.

[felix culpa]

John, I can only offer you my reverence.
Bless you.

[Sebastian]

"The point is not that all else is going to be equal, but rather whether you are going to give weight to (shudder) non-SAT considerations and if so, how much, and why that is not a totally arbitrary decision."

Ok, so if I say that I want to ban legacy considerations can we kill affirmative action?