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At their best, high court decisions in any nation address profound moral questions. So it was last week in the United States, where the Supreme Court handed down three opinions on gay sex, Internet use in libraries, and racial diversity on university campuses.
In overturning a Texas sodomy law, the court essentially removed legal restrictions on sexual activities among consenting adults of the same gender. While establishing a significant precedent, it directly benefited a fairly small constituency.
In requiring Internet filters for online computers at public libraries that accept federal funding, the court sought to shield young viewers from pornography. Since adult users may still ask librarians to turn off the filters, the impact affects a large clientele, though in modest ways.
By contrast, the cases concerning admission policies at the University of Michigan affect a huge population in profound ways. They benefit minorities in a nation that will, before long, have a “majority minority” complexion to its demographics. And they do so by affirming that racial diversity in higher education is a first-intensity public good. In her ringing endorsement of the right of the university to consider race in admitting students, Justice Sandra Day O’Connor wrote, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
Why, then, wasn’t the decision upholding the university’s law school admissions policy a 9-0 vote? Why did it only scrape by with 5-4? Because like every genuinely tough decision, this one involved two powerful and competing rights. Doing so, it put two persuasive ethical positions into conflict with each other.
The first position, held by those who favored taking race into account in admissions programs, adopted the ends-based, utilitarian perspective. Under this rubric, ethics gets done when you do the greatest good for the greatest number. That means you pay attention to consequences. And so it was for Justice O’Connor, who, citing an amicus brief filed in the case, noted that “numerous studies show that student body diversity promotes better learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’” Hammering home the favorable consequences of this “greatest good” argument, she noted that “these benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”
On the other side, among those who voted for race-blind admissions policies, the arguments came largely from a rule-based, Kantian perspective. Under this rubric, ethics gets done when you hold unswervingly to a principle that you would like to see applied universally and eternally, regardless of the consequences of the moment. This view of ethics has led artists through the ages to depict justice as an individual (usually a woman) holding a set of scales and wearing a blindfold — unaware, in other words, of the particular set of circumstances in any given case and concerned only about the broad precedent. That perspective comes through most powerfully in Justice Clarence Thomas’s argument for race-blind admissions. “Every time the government places citizens on racial registers and makes race relevant to the provisions of burdens or benefits, it demeans us all,” he wrote in his dissent. “No one would argue,” he continued, “that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exceptions to favored races.”
And therein lies the crux of this case. The desired end state is not in question. Both sides yearn for a genuinely equal society in which race has no more impact on our perception of others than the shape of their ears. As Justice O’Connor concluded, affirmative action should “no longer be necessary” twenty-five years from now. The question is, Can you get there by taking race into account along the way? Rule-based thinkers say you cannot. Ends-based thinkers say you must.
Ethically, both are right. Both are adhering to long-established and noble traditions of moral reasoning. And both honor the frameworks of the others’ decision making. Yet in the end, as happened last week, issues must be resolved and one side must prevail. That a discussion of so potentially inflammatory a topic as race in the United States could be conducted with civility and grace — without the nasty, jugular-seizing rhetoric of so much political speech, where each side seeks dominance by vilifying the other — is a testament to the power of ethical discourse to sustain a culture of respect.
(c)2003 Institute for Global Ethics
“The city and the mayor have to have the discretion to remove people in uniform who display significant racial bias. It’s not any kind of partisan political component. It’s how it affects the citizens of the city and how do they feel about a police department or a fire department that permits its members to make fun of a racial crime.”
– Rudolph Giuliani, former mayor of New York, speaking to the New York Times about last week’s court decision overturning his firing of three city workers in 1998. The men — one police officer and two firefighters — appeared on a parade float in blackface, threw watermelon and fried chicken to paradegoers, and reenacted the Texas dragging death of James Byrd Jr., according to witnesses. The judge in the case concluded that the firings were an illegal attempt to censor what Giuliani felt was “a disgusting display of racism,” according to the Associated Press. The government, the judge wrote, “may not prohibit the expression of an idea simply because a segment of society finds it offensive.”
WASHINGTON
Racial diversity plays a vital role in ensuring the strength of U.S. universities as well as the success of the national economy and armed forces, the Supreme Court signaled last week in a highly anticipated pair of rulings.
The court’s decisions — throwing out one affirmative action policy at the University of Michigan, while upholding a second at the same school — is expected to have a ripple effect through the nation.
With a 5-to-4 ruling, the court last week upheld an admissions policy at the University of Michigan law school, which gives minority applicants a qualitative boost when seeking a place in the academy’s ranks.
At the same time, the court voted 6-to-3 to declare unconstitutional the university’s undergraduate admissions policy. That program automatically awarded 20 points to minority applicants, giving them a significant leg-up on white rivals in the race to hit 100 points and guaranteed admission.
Explaining its rationale, the court said that while a qualitative boost is okay, a numerical one is not, relying on a Supreme Court decision — Regents of the University of California v. Bakke – from 1978.
The Bakke decision said that race could be used as a “plus factor” in university admissions, since ensuring racial diversity served a “compelling state interest,” reported the New York Times.
While more than two decades of subsequent court rulings and legal opinions had put Bakke on shaky ground, last week’s Supreme Court decision turned that bedlam into bedrock, noted the Times.
“In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” Justice Sandra Day O’Connor wrote in the 5-to-4 ruling.
“Effective participation by members of all racial and ethnic groups in the civil life of our nation is essential if the dream of one nation, indivisible, is to be realized,” O’Connor added.
That view was also espoused by many of the nation’s largest corporations as well as former military officials, who broke with the Bush administration to support the affirmative-action programs.
In amicus briefs filed with the court, the parties said that a diverse student population is vital to preparing people for the workforce and armed forces, reported the Washington Post.
Justice Clarence Thomas, who is black, disagreed with the 5-to-4 ruling. “Every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all,” he wrote in dissent.
Last week’s decisions — advocating a highly individualized consideration of race while at the same time spurning quotas — leaves the waters a bit muddy and the architecture of racial-preference programs somewhat tenuous, many analysts noted.
The rulings, which come 25 years after Bakke, prompted the court to suggest that such affirmative-action policies should no longer be necessary in another 25 years, reported the Times.
Curt Levey of the Center for Individual Rights, which filed the suits against the Michigan programs, said he hoped the court was right, warning that more lawsuits would test that assessment.
“The court says affirmative action is not timeless, and it had better not be,” Levey told the Times.
WASHINGTON
Congress has the right to force public libraries to install Internet filters on their computers even though such filters often inaccurately block access to legitimate sites, the Supreme Court ruled last week.
The court’s 6-to-3 decision upholds the Children’s Internet Protection Act (CIPA), the latest effort by Congress to control children’s access to pornography and sexually explicit material.
CIPA, which was blocked by a federal court last year, orders public libraries to install content filters or face the loss of badly needed funds and technology subsidies provided by the federal government.
Critics of CIPA said that while its goal was laudable, its method — a blunt, one-size-fits-all approach to censoring Internet content that inaccurately blocks access to legitimate sites in the process — was flawed.
That “overblocking” denies both adults and children access to medical information, online art exhibits, and other worthwhile sites, and violates the First Amendment, they contended, reported the New York Times.
Last week, a majority of the Supreme Court rejected that view, ruling that the program does not violate the First Amendment and that any burdens are outweighed by the need to keep children from explicit Internet content.
“Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limit on its Internet assistance programs,” Chief Justice William Rehnquist wrote for the majority.
While libraries now will be required to filter the content available to patrons, CIPA allows, but does not require, them to turn off the filters when asked to do so by adults, observed the Times.
More than 14 million Americans use libraries to go online, according to factual findings presented in the case, noted the Reuters news agency.
Justice David Souter, one of three dissenters in the case, said the majority’s reasoning was flawed.
CIPA’s proposal is akin “to buying a book and then keeping it from adults lacking an acceptable ‘purpose’ or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults,” Souter wrote, according to the Times.
WASHINGTON
A landmark lawsuit accusing Nike of lying to consumers about its use of sweatshops can proceed to trial, the Supreme Court ruled last week, saying the free-speech issues should be hashed out first in lower courts.
The decision gives the green light to a lawsuit filed by a California activist accusing athletic apparel giant Nike of distorting its record on labor conditions and treatment of workers in Third World factories.
Mark Kasky alleges that Nike and its subcontractors subjected workers in the mid-1990s to harrowing conditions, including physical abuse, dangerous workplaces, and insupportable wages, reported the Reuters news agency.
Nike responded by publishing press releases, media ads, letters to newspaper editors, and other articles disputing the allegations. Kasky fired back by suing the firm for false advertising.
Nike sought to have the case dismissed, arguing that its press campaign was political speech protected by the First Amendment, not commercial speech, which enjoys a lower threshold of protection.
Most of the nation’s premier media companies joined with conservative groups to back Nike, warning that a ruling against the firm could cause corporations to refuse to comment on concerns about their products, according to the Associated Press.
Last week, the Supreme Court turned away the case with a 6-to-3 vote, saying the case should be argued in lower courts before taking its place on the high court’s agenda.
In another free-speech case, the Supreme Court last week refused to hear a case filed by the Church of Jesus Christ of Latter-day Saints, which was hoping to limit speech and activities on a stretch of sidewalk bought by the church in Salt Lake City.
After purchasing the highly trafficked plaza sidewalk from Salt Lake in April 1999, the church agreed to allow public access but sought to restrict certain activities — smoking, sunbathing, bicycling — as well as speech it deemed offensive along the walkway.
Last October, an appeals court agreed with the American Civil Liberties Union that such restrictions were unconstitutional, ruling that the city and church could not create a “First Amendment-free zone,” reported the AP.
The church’s appeal was rejected last week by the Supreme Court without comment.
LONDON
The BBC last week refused to apologize to the British government over a contentious report charging the Blair government with hyping unreliable facts in the build-up to the war on Iraq.
On one side of the dispute is the BBC, which reported that Tony Blair’s government “sexed up” the assertion that Iraq could deploy a chemical attack with only 45 minutes’ notice — a threat used to whip up public support for the war.
On the other side is Tony Blair’s communications director, Alastair Campbell, who says he used reliable intelligence advice responsibly, accusing the BBC of smearing his name and betraying an anti-war agenda.
“I simply say in relation to the BBC story — it is a lie,” Campbell fumed last week to a select committee of Parliament. “There was an agenda in large parts of the BBC . . . there was a disproportionate focus upon the dissent, the opposition to our position.”
Campbell insisted that the government made mistakes in its handling of intelligence information, but denied distorting the truth, reported the Guardian.
Campbell’s case has been questioned in recent weeks after revelations that an intelligence dossier drawn up under his command put special prominence on the 45-minute assertion, which was plagiarized from a 12-year-old thesis written by a California Ph.D. student.
“What I wrote was an academic, neutral article,” the student, Ibrahim al-Marashi, told British radio, according to the Guardian. “[The dossier] was written on a political agenda, and in that kind of conversion you would need to sex it up, and that’s what they did.”
The BBC last week struck a defiant pose and refused to apologize to Campbell for its reporting.
“We have always been clear in our reporting,” the BBC insisted last week. “Our senior and credible source told us that he and others in the intelligence community were unhappy that real intelligence based on a single source was given undue prominence in the dossier of September 2002.”
“We do not feel the BBC has anything to apologize for,” the network added, according to a report from the Times.
PHILADELPHIA
As media and stock scandals grab recent headlines, a quieter story is playing out 25 miles north of Philadelphia where once-disgraced reporter R. Foster Winans is building a new legacy for his community.
Winans, a former Wall Street Journal reporter who fed information from the paper’s upcoming articles to stock brokers, illegally netting $675,000 for brokers and others, spent eight months in federal prison in the 1980s for fraud.
Now, Winans is hoping to make a difference by telling his story — and helping others tell theirs by starting a nonprofit writers’ center in his hometown north of Philadelphia.
The center has become a thriving community hub for the town, offering workshops, outreach programs, and a literary journal edited by Winans, according to a profile last week by the Associated Press.
“I’m in the position of having been through it already,” Winans told the AP. “I did something wrong, I took my medicine, I reinvented my life as best I could, and I’ve come out the other side.”
Herman Silverman, a local businessman and supporter of the Writers Room, agrees.
“He’s done his penance and he’s paid his dues; that’s over and done with,” Silverman told the AP. “In just a few years, it’s amazing how people have gravitated to this thing he’s started, how it’s grown, how important it’s become to the community.”
Still, Winans says he knows his past is still partly present and tells his story as a warning to others who might be tempted to do the wrong thing.
“He tells the story about his own negative behavior, and he makes it clear that anyone in the business world could feel the temptation to do the wrong thing,” noted Temple University business ethics professor Terry Halbert, who has invited Winans to talk to her classes.
“I spent the first part of my life seeing what I could get out of it, and I’m spending this part of my life seeing what I can put back into it,” Winan added.
MUNCIE, Indiana
An Indiana jury last week ordered Outback Steakhouse to pay $39 million to a couple injured when their motorcycle was hit by a driver who allegedly became intoxicated from drinks served at the restaurant.
Outback Steakhouse, which allegedly served free alcohol and 10-cent drinks during its grand opening party, was accused of letting William Whitaker leave to operate his vehicle while drunk in 1997.
Whitaker drove his car across the road’s center line, slamming into a motorcycle carrying David and Lisa Markley, who were severely injured by the crash, reported the Star Press of Muncie.
Last week, a jury said the Markleys deserve $60 million for their injuries, apportioning 65 percent of the blame and damages to Outback Steakhouse, which was ordered to pay $39 million.
The company is expected to appeal, noted the Star Press.
In a similar case, restaurant chain T.G.I. Friday’s last week agreed to pay $21 million to settle charges filed by the parents of two teenagers killed by a driver who left the restaurant after allegedly drinking for eight hours.
Mark Eberenz, whose blood-alcohol level was more than three times the legal limit, drove his truck into a car carrying 16-year-olds Cory Stauble and Jamie Parsley. All three were killed in the accident, reported the Associated Press.
The teenagers’ parents sued T.G.I. Friday’s for allowing Eberenz to drive away while intoxicated. The company settled the suit, but said its $21 million payout “should not be construed as an admission of responsibility.”
As part of the settlement, T.G.I. Friday’s also agreed to offer free cab rides to drunk customers, train employees to monitor customers’ drinking, and post signs noting the right to refuse alcohol to impaired people, noted the AP.
“I’m not sure that this lawsuit will change anything, but it will make (restaurant management) more aware of the situation and the liability they may face,” Betsy Byrd of the Kentucky Restaurant Association, told the AP.
NEW YORK
More than 300 companies agreed last week to a $1 billion settlement with aggrieved investors who say the firms rigged initial public offerings (IPOs) of stocks during the late 1990s, cutting them out of huge profits.
IPOs were the quick way to get rich during the stock market bubble of the late 1990s, when new stocks saw their prices skyrocket within minutes of hitting the market, reported the New York Times.
Investors who could buy shares at the opening price stood to make millions, while less-fortunate investors had to wait in line, watching stock prices climb and personal profit margins fall.
After the bubble burst, scrutiny expanded and suits were filed accusing the companies and the IPO handlers of rigging the game to push prices higher, pulling in profits, fees, and commissions in the process.
In 1999, IPOs raised more than $75 billion — roughly the same amount raised in all new stock offerings during all of the 1980s, noted the Times.
Last week’s settlement consolidates 309 class-action suits covering more than 300 IPOs that hit the trading floor between 1998 and 2000, reported Dow Jones.
Plaintiffs are waiting to count the $1 billion payout until a parallel lawsuit against brokerage houses that controlled the IPOs — Citigroup, Goldman Sachs, and Merrill Lynch among them — goes to trial.
If the plaintiffs win more than $1 billion in that suit, last week’s settlement will be essentially voided, according to the Times.
“It’s always been the case that the primary target is the underwriters,” plaintiffs’ attorney Melvyn Weiss of Milberg Weiss Bershad Hynes & Lerach LLP told Dow Jones. “This gives us a booster shot in our case against them.”
Last week’s settlement still must be approved by the participating companies’ boards and U.S. District Court Judge Shira Scheindlin.
ROME
In a move ironically designed to prevent international embarrassment, Italy’s lower house of parliament passed a bill granting prime minister Silvio Berlusconi legal immunity while he’s in office.
Passage of the bill, which received approval earlier by the Senate and, according to the Guardian, was originally proposed by Mr. Berlusconi himself, has sparked anger and outrage throughout Italy, as well as scorn from around the world.
With Italy set to assume the rotating six-month European Union presidency on July 1, the new bill guarantees that Berlusconi cannot be convicted of crimes, including pending charges that he bribed judges in the 1980s.
Praising the bill’s passage, Berlusconi, a media tycoon, told Reuters that “it brings Italy into line with other European countries.”
During a court appearance in Milan last week, he also stated that “throwing doubt and mud on the prime minister’s office throws doubt and mud on the entire country,” according to the New York Times.
His critics, particularly those in the left-wing opposition, clearly see things differently. Giuseppe Fanfani, an opposition member of Parliament, told the New York Times, “It’s a law of privilege; it’s not democratic for one person to have so much power.”
Meanwhile, Reuters reports that La Repubblica, a left-leaning Italian newspaper, ran a front page editorial after the bill’s passage declaring, “From today, Berlusconi can no longer face trial … as a citizen, therefore, he is no longer equal to everyone else. The law is no longer equal for all.”
A referendum movement organized by members of the Communist Party, Greens, and civil rights organization is already under way in an attempt to overturn the law, which is opposed by two-thirds of the Italian population, according to one recent poll cited by the BBC.
While charges could be reinstated after Berlusconi’s term expires, observers contend that is unlikely, according to the Guardian.
Special to Newsline from Canadian correspondent Errol P. Mendes
OTTAWA
Following an onslaught of criticism for misleading a parliamentary committee and his excessive spending on meals and travel, George Radwanski, Canada’s federal privacy commissioner, resigned last week.
The resignation, barely three years into a seven-year appointment by the prime minister, followed revelations before a parliamentary committee that Mr. Radwanski and a female communications director, Dona Vallieres, spent more than $205,000 between them on travel in the 2002-2003 fiscal year, with one trip to Paris costing Canadian taxpayers $26,000.
There were also revelations of extravagant lunches at the capital’s best restaurants that individually totaled in the hundreds of dollars.
Radwanski was also accused of hiding documents and misleading the committee with altered documents. The committee alleged they had to go into closed session to hear from whistle-blowers in the Commissioner’s Office to get more reliable versions of documents and events.
Mr. Radwanski claims he is the subject of a smear campaign and the victim of a powerful campaign by some in government who would prefer a less forceful privacy commissioner.
There are few who would not agree that Mr. Radwanski was an effective champion of privacy issues, especially regarding anti-terrorism measures that affected privacy concerns of Canadians. However, his defense has been undermined by the fact that both the government and opposition parties on the committee were unanimous in their critique of the entertainment and travel expenses that he submitted.
In another controversy surrounding Mr. Radwanski’s original appointment, it has been revealed that before his appointment, he was able to avoid paying close to 90 percent of a $401,000 tax bill owed by him after declaring personal bankruptcy.
Some members of the parliamentary committee are wondering if Mr. Radwanski may be liable to pay the rest of the tax bill if he did not disclose to the tax authorities his imminent appointment to a high-paying position as federal privacy commissioner.
From the Gallup News Service:
“Ratings of relations between major racial and ethnic groups in American society show some improvement compared with prior years. Americans give positive overall assessments to the state of relations between whites and blacks, whites and Hispanics, whites and Asians, and blacks and Hispanics, with white-Asian relations viewed most positively and black-Hispanic relations viewed least positively.
“Similarly, both blacks and whites say that dislike between the two races is not very common. Nevertheless, the proportion of blacks who say they regularly feel discriminated against because of their race outnumbers the proportion who say they never feel discrimination. The reverse is true among Hispanics, who are significantly less likely to feel discriminated against because of their ethnic background.
“The Gallup Minority Relations poll, conducted June 12-18, finds large majorities of Americans believing that relations among the races and ethnic groups are good.
“…The current results among whites are considerably more positive than in the early to mid-1990s, around the time of the 1992 Los Angeles race riots and the 1995 O.J. Simpson verdict, when a majority of whites thought many or almost all blacks disliked whites, and just 37 percent believed that few blacks disliked whites. Black opinion during those times was generally similar to what it is today….
“The poll asked blacks and Hispanics how often they ‘feel discriminated against in public life or employment’ because of their race or ethnicity. Hispanics very rarely feel discriminated against — 41 percent say they never feel this way, 16 percent say less than once a year, and 23 percent say just a few times a year. Only 10 percent of Hispanics say they feel discriminated against on a weekly or daily basis.
“Blacks are much more likely to report feeling discriminated against. Twenty-six percent of blacks say they feel discriminated against on a weekly or daily basis. Only 19 percent of blacks say they never feel discriminated against, 15 percent say less than once a year, and 25 percent say a few times a year….”
“Public education is a great instrument of social change. Through it, if we so desire, we can make our country more nearly a democracy without classes…. Education is a social process, perhaps the most important process in determining the future of our country, it should command a far larger portion of our national income than it does today.”
– James Bryant Conant (U.S. chemist and educator, 1893-1978)
