No, the University of Wisconsin - Madison is Not Planning to Distribute Grades Based on Race

I feel the need to make this seemingly-obvious point because John Leo at Minding the Campus is claiming the exact opposite. From his strongly-worded post:

A remarkable article on the University of Wisconsin (Madison) appeared yesterday on the John William Pope Center site. In it, UW economics professor W. Lee Hansen writes about a comprehensive diversity plan prepared for the already diversity-obsessed campus. The report, thousands of words long, is mostly eye-glazing diversity babble, filled with terms like “compositional diversity,” “critical mass,” “equity mindedness,” “deficit-mindedness,” “foundational differences,” “representational equity” and “excellence,” a previously normal noun that suffers the loss of all meaning when printed within three words of any diversity term. 

But Professor Hansen noticed one very important line in the report that the faculty senate must have missed when it approved this text: a call for “proportional participation of historically underrepresented racial-ethnic groups at all levels of an institution, including high-status special programs, high-demand majors, and in the distribution of grades.” So “representational equity” means quotas at all levels. And let’s put that last one in caps: GRADES WILL BE GIVEN OUT BY RACE AND ETHNICITY.

While affirmative action is a fascinating topic from a constitutional law and federal courts perspective, I typically try to avoid discussing it because of the strong reactions this topic can inspire. But when bad arguments or sketchy claims are made in a debate -- even one involving a controversial subject -- I think that it can be worth stepping in to call out the nonsense.

And if that nonsense is in all capital letters...at that point a reply is all but necessary.

How to Use a Dictionary

Via the Legal Writing Prof Blog, I learned of Justice Antonin Scalia's and Brian Garner's recent article, A Note on the Use of Dictionaries, in the Green Bag.  In this Article, Justice Scalia and Garner describe general principles on which one should rely when using dictionaries, and they provide a list of the most authoritative dictionaries.

One principle I realized I had never thought enough about was how to approach dictionaries' ordering of terms.  Back in my debate days, I was simply taught never to argue that one definition is more authoritative than another because it is listed first in the dictionary.  In their article, Justice Scalia and Garner point out that it's not quite that simple.  They write:

You must consult the prefatory material to understand the principles on which the dictionary has been assembled. The ordering of senses provides a classic example. Although many people assume that the first sense listed in a dictionary is the “main” sense, that is often quite untrue. Some dictionaries list senses from oldest in the language (putting obsolete or archaic senses first) to newest. Others list them according to current frequency. Using a dictionary knowledgeably requires a close reading of the principles discussed at the outset.

Surely enough, I found that the Oxford American College Dictionary (a dictionary that is not listed in the article, but the only dictionary I had on hand) describes its system of preference as listing a "core" meaning of the word, followed by "subsenses" that logically follow.  Unfortunately, the discussion of these meanings does not go into much more depth, leaving me confused as to what a "core" is and why it is important.  It sounds important, however, (more important than a "subsense" at least).

If any moot court problem developer were to read this article, perhaps they would consider applying what they learned.  It would be interesting if a problem developer were to write a scenario involving a question of statutory interpretation, provide a number of dictionary definitions, the prefatory section of each dictionary, and Justice Scalia and Garner's article on dictionary usage.  This would at least require employing brief-writing techniques that most legal writing courses don't manage to cover.

Of course, any problem developer must keep in mind that judges must also be able to engage with the problem -- and the notion of asking questions about dictionary usage may seem less than fascinating to most.  Still, it is never too early to speculate.

Handing Down a Double Loss

This evening, I was talking with one friend about coaching and judging high school debate, and with another friend about parties who represent themselves pro per in court, and this combination of topics made me wonder if there are any reported cases where the court has managed to rule against both parties.  Back in the days when I was a high school debater, I had heard stories of debate judges giving the fabled “double loss” in exceptional circumstances, but when judging debates, I always managed to find one set of arguments I disliked more.  Maybe I’d be more flexible about the idea if I could get some precedent from actual judges.

After exhaustive research (well…one Westlaw terms and connectors search of “both parties lose”) I stumbled across the case of Gunther v. Tworek, 690 N.W.2d 885 (Wisc. Ct. App. 2004).  Overall, it is a fun little opinion that strongly conveys the court’s frustration with the parties.  The portion of this opinion that caught my eye was:

Finally, Tworek requests this court to grant him costs under WIS. STAT. RULE § 809.25(1). But while Gunther loses his appeal on whether interest was proven or calculable, all of Tworek's issues on cross-appeal are also dismissed. Because both parties lose their appeals, we will follow our standard practice and deny costs to both.

Unfortunately, this case is unpublished as well as uncitable, having been decided before 2009.  In making my argument for the double loss in a court of law, it would appear that I will need to press on without precedent.  I am not completely out of luck, however, as courts may still be swayed by the immortal words of Lord Mildew who once said “There is no precedent for anything until it is done for the first time” (quoted in Carrot & Co. v. Guano Assoc., A.P. Herbert’s Uncommon Law, p. 109, fn. 1).

Additionally, I doubt that the Wisconsin rules governing case citations apply in the debate judging context.  This is especially true for me, since I have never and probably will never judge at a competition in Wisconsin.  Gunther sounds far more convincing than secondhand anecdotes about rebellious coaches, so if debate judges are tempted to grant the double loss, I think that they should look to this case for inspiration and guidance.