Category Archives: Supreme Court

Why Do We Need Expensive College Degrees to Get A Simple Job?

Enrollment in U.S. higher education, by institution type: 1967–97

Enrollment in U.S. higher education, by institution type: 1967–97

Until 1960 or so, the percentage of people getting college degrees was relatively low. There was plenty of work for people who had ‘merely’ graduated from high school, and a high school graduate could support a family.

Then came the Vietnam War, where the United States government would happily enslave high-school graduates, but not students in college. The number of students entering college zoomed upward, and the number of colleges proliferated.

But the war ended in the early 1970’s, and the U.S. government stopped enslaving young men, although it does reserve the capability to start doing so at any time.

Yet, despite this pressure, the number of people entering college continued to increase. Why? Quite simply because it started to become difficult for a high school graduate to find a job. If you’ve finished high school and you’re wondering whether to go to college or get a job, you could look at these College and Career Resources to see if they can help you make your decision. However, an increasing number of companies have started demanding a college degree for jobs that clearly don’t require anything more than the education that could be acquired at a half-way decent high school. Some employers even use an employment testing solutions to help to assess their new employees to see if they able to do the job.

Why would employers do this? What could prompt such a strange change? As usual, dig down into the matter, and the answer becomes clear. In a paper posted at the John William Pope Canter for Higher Education, Bryan O’Keefe and Richard Vedder argue that the reduced employment opportunities for high-school graduates and the resulting rise of the higher education bubble is an unintended consequence of the 1964 Civil Right Act, namely this part of Section VII:

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

At the time this law was passed employers routinely classified prospective employees via pre-employment testing. This testing was used to determine things like knowledge, technical aptitude, personality compatibility and, yes, the race of applicants. At the time the law was being debated, its opponents raised the objection that this law could outlaw non-racist testing alongside racist testing. To which the proponents of the bill replied:

There is no requirement in Title VII that employers abandon bona fide qualification tests where, because of differences in background and educations, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualification as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance.

Of course, like Madison’s claims that the Federal Government would obviously be limited to the powers described in Section 8 of Article I of the U.S. Constitution, these legislators claims did not survive actual contact with the courts. In the case Griggs v. Duke Power, the U.S. Supreme Court described what criteria can be used for pre-employment testing:

  • A test where members of one race performed more poorly than members of another race – demonstrating a “disparate” performance – was assumed to be discriminatory with respect to race, even if that was not the intention of the test.
  • Tests with disparate results are illegal unless the test has a direct business necessity.

Since, most businesses weren’t interested in wasting money on tests that were not necessary to screening out unfit employees or identifying the most fit employees, they were stunned. The Supreme Court had a very complicated definition of what constituted “Direct Business Necessity”, one that was difficult to meet and gave considerable deference to the employee of the Equal Opportunity Commission who was deciding whether or not to accuse a company of illegal discrimination. Only the simplest tests, such as requiring a prospective driver to pass a driving test could reasonably pass muster. Other tests, which businessmen clearly felt were useful to reducing the risk of hiring the wrong person for the job, now could get them sued.

Companies began casting about for a way to screen out the-incompetent or unfit in a way that would not result in them being sued. The simplest solution is to demand a college degree. Any racial discrimination demonstrated in the pool of degreed people would be the colleges’ liability, and the business could get on with the business of hiring new employees without being worried about lawsuits.

It has taken thirty years for this unfortunate unintended consequence to play out;

  • People entering the workforce have been kept idle for four years unnecessarily.
  • People entering the workforce are saddled with debts that are difficult to pay off.
  • Colleges have gotten away with lowering educational standards because their graduates are in such high demand.

When summed across the millions of people who have entered the workforce in the last two decades, the economic costs imposed by this well-intended but horrendously misguided effort are staggering. They include

  • Almost 100 million man-years’ lost productivity.
  • An additional 10 million man-years spent paying off college loans
  • Increased pressure on children to engage in organized activities designed to win the child a scholarship at the expense of their personal development.

Had the proponents of the Civil Rights Act limited their aim at racial discrimination by the government, they would have been crafting a very socially beneficial law. But by seeking to use the law to force people not to racially discriminate, they wreaked massive damage on the economy. Ironically, this damage disproportionately affects minorities who are far more likely to be at the mercy of awful government schools than other ethnic/racial groups.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

SCOTUS Returns to Sanity in School Strip Search Case

It seems that most of the time the U.S. Supreme Court is divided 5-4 on what should be very basic Constitutional principles (such was the case I wrote about in my most recent post). But once in awhile, SCOTUS does the unthinkable and actually upholds the Constitution. In Safford Unified School District #1 et. al. v. Redding, the court ruled 8-1 that the school district had violated then 13 year-old Savana Redding’s Fourth Amendment rights against unreasonable searches.

Reuters Reports:

“Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution,” Justice David Souter wrote for the court majority.

The school’s policy prohibits the use, possession or sale of any drug on school grounds, including prescription and over-the-counter medications. A week before the search, a student became sick after taking pills from a classmate and said certain students were bringing drugs to school.

Following an assistant principal’s orders, a school nurse had Redding remove her clothes, move her bra to the side and pull her underwear out, exposing her breasts and pelvic area, to see if she was hiding any ibuprofen pills.

[…]

Only Justice Clarence Thomas dissented from the part of the ruling that Redding’s privacy rights had been violated.

Thomas said the ruling “grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge.”

While the court agreed that the school district violated Redding’s privacy rights, only Justices Ginsburg and Stevens believed the school administrators should be held liable; the remaining Justices believed that prior to this ruling, the law had not been clearly established.

The ACLU attorney Adam Wolf who represented Redding was also quoted in the article saying: “Today’s ruling affirms that schools are not constitutional dead zones. Savana … is pleased that other students will not have to go through the trauma that she experienced.”

I think we sometimes forget that public school teachers and administrators are actually agents of the government. At times, schools have become “constitutional dead zones” but we should always remember that government agents of all kinds should be expected to respect legitimate rights of students. If the school administrators had good reason to believe that Redding had contraband, they could apply for a search warrant and allow the proper authorities to conduct the search.

Quote Of The Day

Reason’s Jacob Sullum on Sonia Sotomayor:

This inconsistency is not exactly encouraging, but even if Sotomayor chooses sides by flipping a coin she might still turn out better (or at least no worse) than David Souter, and Obama easily could have chosen someone more consistently bad.

I don’t expect much good from Sotomayor, or would have from anyone Obama had selected. Obama does not have an interpretation of the Constitution that I support, and thus I would expect his judicial appointees to consider the limits the Constitution places on government just as “pliable” as he does.

So if she turns out to be better than I expect — an understandably low bar to be set — I’ll take it.

SCOTUS: No Constitutional Right for DNA Testing Post-Conviction

Last week in District Attorney’s Office for the Third Judicial District et. al. v. Osborne the U.S. Supreme Court ruled 5-4 that convicts have no Constitutional right to DNA testing even if such testing would conclusively determine the guilt or innocence of the convict. In this particular case, William Osborne was willing to pay for the DNA test at his own expense but the DA’s office refused to allow Osborne to have access to the sample. Roberts, writing for the court’s majority joined by Thomas, and Scalia, ruled against Osborne because of lack of legal precedents and that Osborne did not avail himself of the available evidence and technological advances at the time of trial. Alito with Kennedy joining wrote a concurring opinion in which Alito worried that allowing Osborne to have access to his DNA sample would flood the criminal justice system with demands that more DNA evidence be preserved. Both opinions stressed that the domain for making guidelines for DNA preservation and testing would better be handled by state legislatures rather than the federal courts.

First, some excerpts from Justice Roberts:

A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But “[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera v. Collins, 506 U. S. 390, 399 (1993). “Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Dumschat, supra, at 464 (internal quotation marks and alterations omitted). (p. 15)

Osborne seeks access to state evidence so that he can apply new DNA-testing technology that might prove him innocent. There is no long history of such a right, and “[t]he mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303 (1993). (p. 19)

Establishing a freestanding right to access DNA evidence for testing would force us to act as policy makers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).

In this case, the evidence has already been gathered and preserved, but if we extend substantive due process to this area, these questions would be before us in short order, and it is hard to imagine what tools federal courts would use to answer them. At the end of the day, there is no reason to suppose that their answers to these questions would be any better than those of state courts and legislatures, and good reason to suspect the opposite. See Collins, supra, at 125; Glucksberg, supra, at 720.” (p. 20 & 21)

I think Roberts is making this issue more complicated than necessary. As he points out, the evidence has been preserved. There is no need to get into “policy making” to say that the DA must allow Osborne access to the sample that the DA physically possesses. And even if the presumption of innocence disappears and the burden of proof falls on Osborne to prove his innocence, how can he possibly attempt to do so without having the sample?

Now an except from Alito:

Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent’s guilt. After conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime. Now, respondent claims that he has a federal constitutional right to test the sample and that he can go directly to federal court to obtain this relief without giving the Alaska courts a full opportunity to consider his claim […]

[…]

[E]ven though respondent did not exhaust his state remedies, his claim may be rejected on the merits, see §2254(b)(2), because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.” (p. 1 & 2)

Stevens in his dissent (joined by Ginsburg and Breyer; Souter filed a concurring opinion) responded to the majority opinion as follows:

The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all. (p. 1)

The liberty protected by the Due Process Clause is not a creation of the Bill of Rights. Indeed, our Nation has long recognized that the liberty safeguarded by the Constitution has far deeper roots. See Declaration of Independence¶2 (holding it self-evident that “all men are. . . endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty, and the pursuit of Happiness”);see also Meachum v. Fano, 427 U. S. 215, 230 (1976) (STEVENS, J., dissenting). The “most elemental” of the liberties protected by the Due Process Clause is “the interest in being free from physical detention by one’s own government.” Hamdi v. Rumsfeld, 542 U. S. 507, 529 (2004) (plurality opinion); see Foucha v. Louisiana, 504 U. S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause”).

Although a valid criminal conviction justifies punitive detention, it does not entirely eliminate the liberty interests of convicted persons. For while a prisoner’s “rights may be diminished by the needs and exigencies of the institutional environment[,] . . . [t]here is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U. S. 539, 555–556 (1974); Shaw v. Murphy, 532 U. S. 223, 228–229 (2001) (“[I]ncarceration does not divest prisoners of all constitutional protections”). Our cases have recognized protected interests in a variety of post conviction contexts, extending substantive constitutional protections to state prisoners on the premise that the Due Process Clause of the Fourteenth Amendment requires States to respect certain fundamental liberties in the post conviction context. See, e.g., Thornburgh v. Abbott, 490 U. S. 401, 407 (p. 7 & 8)

Wow, if I didn’t know any better, I would think Stevens was of a libertarian or Lockean ideology because I think he is spot on in this case. There are times whenever “judicial activism” is necessary whenever state legislatures fail to uphold due process and other Constitutional protections.

Stevens continues:

The fact that nearly all the States have now recognized some post conviction right to DNA evidence makes it more, not less, appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court. (p. 9)

Throughout the course of state and federal litigation, the State has failed to provide any concrete reason for denying Osborne the DNA testing he seeks, and none is apparent. Because Osborne has offered to pay for the tests, cost is not a factor. And as the State now concedes, there is no reason to doubt that such testing would provide conclusive confirmation of Osborne’s guilt or revelation of his innocence.7 In the courts below, the State refused to provide an explanation for its refusal to permit testing of the evidence, see Brief for Respondent 33, and in this Court, its explanation has been, at best, unclear. Insofar as the State has articulated any reason at all, it appears to be a generalized interest in protecting the finality of the judgment of conviction from any possible future attacks. See Brief for Petitioners 18, 50.8 (p. 11)

In other words, if the state properly convicted the right person, what is the state so afraid of?

It seems to me obvious that if a wrongly convicted person were to produce proof of his actual innocence, no state interest would be sufficient to justify his continued punitive detention. If such proof can be readily obtained without imposing a significant burden on the State, a refusal to provide access to such evidence is wholly unjustified. (p. 13)

It’s really is too bad that Stevens’ opinion did not carry the day. It’s also too bad that Osborne was the test case for this very important issue (Osborne is not what most might consider a sympathetic person; even if he was proven innocent of these charges, he faces other charges unrelated to this case). It doesn’t seem right that the Supreme Court would allow the state to withhold exculpatory evidence which would lead to the truth. Isn’t getting to the truth the point of our criminal justice system?

Quote of the Day: Sotomayor’s “Pro-State Bias” Edition

This article in The Boston Globe about Sonia Sotomayor ought to delight “tough on crime” conservatives and cause great concern for civil libertarians of all stripes. Prosecutors and law enforcement organizations give her high marks for her “aggressiveness” both as a prosecutor and as a judge.

One quote from the article stood out and seems to support what I wrote about her in a post I wrote last week:

“[Sotomayor] certainly doesn’t seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.” – Law Professor and Sentencing Expert Doug Berman

I take exception to the “pro-criminal” part of the quote because in our system (at least in theory), individuals are innocent until proven guilty. Beyond this, I am troubled that a nominee for the Supreme Court would show a detectable bias toward either toward the prosecution or the defense. The only bias a judge should have should be toward the Constitution (the Bill of Rights in-particular).

This is one bias Judge Sotomayor appears not to have.

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