Saturday, October 31, 2015

Yes, Free Speech Sometimes Costs Money

Agent of Plutocracy? 

In a recent blog post, one Jim Hightower claims that: "[b]izarrely the Supreme Court decreed in its Citizens United ruling that money is a form of free speech."  As a result, he says, people with more money can engage in more free speech, and speech is "no longer free," with the result that we live in a '"Plutocracy, not a Democracy." 

Citizens United did not equate the expenditure of money with speech.  Instead, the Court simply held that quintessential speech --- there a movie critical of a political candidate --- did not lose its status as free speech because production and distribution of the movie cost money.   This was not a novel conclusion.  In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court, in an opinion by Justice William Brennan (pictured above) held that states cannot punish speech --- there a newspaper advertisement --- absent proof of "actual malice" by the speaker.  In so doing, the Court expressly rejected the claim that the speech in that case --- a full page statement in the New York Times by various civil rights leaders and their supporters --- lost First Amendment protection because it was a paid advertisement.  (The advertisement, placed in 1960, cost $4,830, over $38,000 in 2015 dollars.)  According to Justice Brennan's opinion, which was unanimous on this point:

"[The advertisement] communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are of the greatest public concern [citation omitted].  That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold..."

Far from "bizarre," this holding is unremarkable. The exercise of individual liberties often consumes scarce resources, and free societies rely upon the price mechanism to allocate such resources. In such a system, wealthy individuals will be able to exercise certain constitutional rights more often and or in different ways. For instance, as previously noted on this blog, the Constitution protects the right to travel, a bulwark of competitive federalism. Travel can be expensive, with the result that wealthy individuals can exercise this right more often than others, if they so choose. Moreover, the Bill of Rights protects the right to counsel, pursuant to which a criminal defendant can hire the best lawyer she can find. The framers and ratifiers of the Constitution would not have been surprised to learn that wealth individuals can hire more and better lawyers than the poor as a result.  Wealth individuals can also purchase more books, movies or art than the poor. As Eugene Volokh has pointed out, a law placing on ceiling on expenditures employed to exercise constitutional rights violates those rights in a straightforward way.  A ceiling on expenditures for movies, books, art, advertisements or handbills is no different. It is difficult to reconcile the views of those who disagree with the basic premises of a free society.

Will The Tribe Soar Into the Top 10 Today?

Moving Ahead

Ready to Soar!

William and Mary continues to climb in the national football polls, now ranking 15th and 16th in the FCS Coaches Poll and Stats Poll, respectively.  This latest jump follows the Tribe's 40-7 Homecoming victory over the Hampton University Pirates at Zable Stadium on October 24th.  (See this post on the William and Mary Sports Blog for a recap of the game.)  Halfback Kendell Anderson, pictured above, led the way with 195 rushing yards.

Later today the Tribe takes on number 9 James Madison at 4:00 PM at Zable Stadium.  The Tribe prevailed the last time the two teams met at Zable, 17-7 (see above).  A Tribe victory today could result in the Tribe soaring into the FCS top 10.  The Griffin, shown above at half time of the Hampton game, is apparently ready! 

Toward a New Conception of Diversity

Induced More Economic Diversity

The New York Times recently published a ranking of "Top Colleges Doing the Most for Low Income Students."  The ranking relies upon the Times' annual "College Access Index." This index, in turn, employs three factors: (1) the percentage of students receiving Pell grants, (2) the graduation rate of students receiving such grants and (3) the net price, after financial aid, that the school charges low and middle income students.  (See here for a description of the index's methodology.)   The article characterizes schools with high scores on the index as more "economically diverse" than those with lower scores.

The top 15 schools as measured by this index include eight public universities: six from California as well as the University of Washington and the University of Florida.   While disparate in many ways, these eight schools have one thing in common: all are in states that have banned race-based preferences (one form of "affirmative action") in college admissions.  For instance, the 1996 California Civil Rights Initiative, championed by Ward Connerly (pictured above) amended the state's Constitution to provide as follows:

"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting."

Washington's Initiative 200, enacted in 1998, added the same language to state law.  Moreover, in 1999, Governor Jeb Bush issued an executive order that "prohibit[ed] racial discrimination in education because of race, gender, creed, color, or national origin" and requested the state's universities to eliminate "racial set asides, quotas or preferences in admissions."   Thus, state law in all three states requires schools to employ exclusively race-neutral criteria when making admissions decisions.   Several other states, including Michigan, Nebraska, New Hampshire, Nebraska, Arizona and Oklahoma, have also banned the consideration of race in admissions.  The Supreme Court properly upheld state initiatives that eliminate race-conscious admissions policies in Schutte v. Coalition to Defend Affirmative Action, 572 U.S. _____ (2014).

Of course, some states have declined to ban such discrimination, implicitly authorizing their colleges and universities to consider the race of applicants when making admission decisions.  Some universities have rejected this invitation, however.  For instance, in 2004 the Board of Regents of Texas A&M eliminated the consideration of race when evaluating applicants, after then-Chancellor Robert Gates recommended that "students at Texas A&M should be admitted as individuals, on personal merit --- and no other basis."  (Texas A&M, it should be noted, ranks 29th among the 179 schools ranked in the College Access Index.)

As Richard Kahlenberg and Halley Potter have explained, state bans on race-based preferences in admissions have encouraged colleges and universities to adopt more comprehensive definitions of diversity.  These definitions focus on class and economic disadvantage instead of race and ethnicity. By re-conceiving the definition of diversity, enhancing efforts at outreach and recruitment, and increasing need-based financial aid, these schools have all increased significantly the economic diversity of their student bodies.  In so doing these schools have better fulfilled their intended roles as engines of upward mobility and equal economic opportunity. Moreover, several such schools have seen the racial and ethnic diversity of their student bodies increase or remain the same after replacing race conscious admissions policies with class and/or income based policies.  (See also here.)

The experience of the schools highlighted above provides valuable lessons to other institutions that wish to enhance the economic diversity of their student bodies.  This experience may also have ramifications for the constitutionality of race-conscious admissions policies. To be sure, the Supreme Court has, in Grutter v. Bollinger, 539 U.S. 306 (2003) narrowly upheld the consideration of race by state officials making admissions decisions.  At the same time, the Court held that such preferences are invalid if race-neutral measures will achieve the same objective.  Indeed, the Grutter Court held that schools that employ race in admissions must engage in "periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity."  The Court also observed that "25 years from now, the use of racial preferences will no longer be necessary[.]"  If, in fact, admissions policies based on class and/or income can generate a "critical mass" of diverse students, it would appear that race-conscious admissions policies constitute unconstitutional racial discrimination.

There are, however, two possible caveats to this line of argument.  First, admissions strategies that focus on applicants' class and income may stretch institutions' financial aid budgets and thus be significantly more expensive than policies that emphasize race instead.  If so, schools could argue that a class and income based approach is not a valid alternative.  Second, admissions policies that rely upon class and income may be ill-suited for graduate and professional schools, given that many applicants to such program have been in the workforce for years, thereby blurring the lines between students who are economically diverse and those who are not.

One thing does seem certain, however.  Bans on race-conscious admissions policies have caused many schools to modify their admissions and recruitment strategies, thereby creating institutions characterized by greater economic diversity.  

Saturday, October 17, 2015

Tribe Defeats New Hamphsire in Williamsburg

William and Mary posted a convincing win against No. 19/20 New Hampshire today, prevailing 34-18 at Zable Stadium in Williamsburg. The Tribe rushed for an impressive 324 yards, including 174 yards and two touchdowns by running back Kendell Anderson.  Anderson's first touchdown came on a 69 yard run off right tackle at the 9:18 mark in the second quarter.  (The third and fourth photos above depict the beginning and end of the run, respectively.)  Quarterback Steve Cluley rushed for 48 yards and two touchdowns on five carries.  (The first  photo above depicts the beginning of Cluley's first quarter touchdown run, and the second depicts the end of his third quarter touchdown run.) 

Go here for the game's box score.

The Concord Monitor called today's game a "critical midseason showdown" for the Wildcats.  Look for the Tribe, ranked 24 earlier this week, to climb in the FCS rankings ahead of next Saturday's Homecoming game against local rival Hampton University.  

The Tribe is now 4-2 on the year and 3-1 in the CAA.  Go here for the Tribe's 2015 Football schedule.