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Comment by kolbe | Hacker News Reader

While you are completely right about the impossible/conflicting legal standards here, this is not an unusual state of things. For example: it has been illegal to discriminate for a very long time, but it has also been de facto illegal to have demographic compositions substantially different from the general population. So, they've always been faced with the problem of needing to either discriminate to get the numbers to match, or not discriminating and risking the numbers falling out of line. The real law has always been, and always will be, prosecutorial discretion. Whatever party is in control will choose whether they go after you or not, and they can because you're always violating one side of something.

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> it has also been de facto illegal to have demographic compositions substantially different from the general population

How so? To which law or case precedent?

Do you know what "de facto" means? I didn't say "de jure," and you're asking for de jure evidence.

It can only be "de facto" illegal if legal action was brought against some entity and succeeded, otherwise it'd be "de facto" nothing. GP also asked for an example case. TBH though I'm not how legal action would succeed without an accompanying law.

Any source at all here for your claim would be nice.

Any law or policy that has a "disproportionate impact" on a protected class is subject to challenge, and will often lose in other public policy matters. I've not seen it happen in school demographics, though most, if not all, schools had some form of affirmative action policy until recently.

The "disparate impact" test applies mainly in civil rights act litigation, and it's extremely hard to make a case under that theory. It's a three-part test, and showing that a particular policy has a disparate impact on one race is just the first hurdle.

You also have to prove that the party acted with malice: either the policy exists for explicitly racist reasons, or the race-neutral justification is pretextual. If you can do that, you _also_ have to prove that there is a less-discriminatory alternative policy that achieves the same goal.

see, e.g., https://www.justice.gov/crt/fcs/T6Manual7#C'

It is definitely not de facto illegal to have a racially lopsided student body -- the school might be asked to justify the specific policy or practice that led to that outcome on race-neutral grounds, but saying "GPA and test scores" would be more than enough.

There is no disparate impact language in the civil rights title VI itself, but the language does appear in the enforcement regulatory frameworks issued by the federal agencies, including the department of education.

Title VI gives agencies authority to enforce Title VI, and many of those agencies added in disparate impact language into their own enforcement language (I think under the Obama administration, but I might be wrong about that).

> It has been illegal to discriminate for a very long time, but it has also been de facto illegal to have demographic compositions substantially different from the general population.

> So, they've always been faced with the problem of needing to either discriminate to get the numbers to match, or not discriminating and risking the numbers falling out of line.

Not disagreeing with your larger point, but this sounds wrong (in a sense that, I don’t think that’s the case).

If what you claim was the case, how has CalTech been managing to have such a large percentage of Asian undergrad students (44% according to their Fall 2024-2025 enrollment data[0], with numbers from previous years not straying that far off either) without ever even a hint of getting in trouble over it (given that Asian people make up roughly 7% of the US population)?

I am sure there are similar examples of other schools, this was just the first major known one that came to my mind. Perchance you are correct, and there is simply something special that CalTech has (and Harvard doesn’t) that lets them not worry about this. But that seems unlikely.

0. https://registrar.caltech.edu/records/enrollment-statistics

> de facto illegal to have demographic compositions substantially different from the general population

The Trump administration mid level staffing decisions are something like 70%+ white men! This seems laughable. Controversial maybe, certainly not "illegal" or they wouldn't have done it.

You need to read what I wrote more carefully. The entire point is that whoever is in power decides which law actually gets applied and to whom. Do you think for some reason that the Trump administration risks being prosecuted by the Trump administration?

This seems like an argument against the rule of law. When arguing for demographic compositions, at least for my personal admittedly limited experience, I see arguments for how policy X upholds the law, or maybe only the spirit of the law in Y ways.

I do not see that here for the current admins demands for diversity.

The executive branch is afforded some discretion, but the judicial system decides how law gets applied as directed by Congress when they write laws.

DAs of all kinds have enormous discretion. A significant part of our legal system is entrusted to them to act honorably, regardless of what judges and legislators say. DAs can't force outcomes that judges say are incorrect, but DAs can and do choose not to prosecute obvious crimes, and there are not great checks against that power beyond replacing them with the political process.

And even when cases are brought, the DoJ needs to defend them. See a number of cases that were very far along in the court system that the Biden administration was pursuing, that the Trump DoJ just quit defending. They simply no longer have a lawyer, and functionally cannot proceed.

> The entire point is that whoever is in power decides which law actually gets applied and to whom.

And that "entire point" is historically incorrect in the United States. There is a long, long, LONG history of the Department of Justice investigating and prosecuting members of the administration that technically runs it.

That your point seems to be correct now, in the most corrupt administration of the modern era, is something that is notable and worth discussing. It's certainly not something to sweep under the rug with a both-sides-ist dismissal.

We can quibble about the definition of "the administration", but the head of it a man who can pardon whomever he pleases for any federal crime he pleases. The very fact that any of these historical charges weren't instantaneously mooted with a pardon is self-evidence to me that all of these prosecutions were of former members of the administration who had fallen out if favor of the actual administration.

Classic No-True-Scotsman here: "Oh, well, sure, they were prosecuted in contravention of my point above. But that means they wanted to prosecute them."

(It's also tautological: I mean, of course they wanted to prosecute them. They were criminals and prosecutors prosecute criminals, definitionally!)

(And also also, it's an Occam's violation: the simpler explanation is that they were just treated like criminals and not that they were double-negative enforcement actions by a corrupt regime.)

Did that sound clever in your head? Again, the head of the executive branch can quash any charge he wants. You're the one contending that a person doing X is evidence that they support not-X.

I admire your willingness to argue that, because they didn't do the corrupt thing, they are in fact corrupt.

Using your constitutionally granted executive powers is pretty standard.

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