In his op-ed at the New York Times yesterday, Yascha Mounk, a fellow at New America, asked “Is Harvard Unfair to Asian-Americans?” A century ago, Harvard had a problem, he writes: “Too many Jews.” Today it’s Asian-Americans. Euphemistic admissions criteria like “character and fitness” solved Harvard’s problem back then. Today, numbers do the job. To get into the top schools, Mounk writes, Asian-Americans “need SAT scores that are about 140 points higher than those of their white peers.” And that’s brought on a suit by a group called Students for Fair Admissions.

If this case is decided eventually under current law, as is likely, the result will be less than clear or satisfying in several respects. To see why, just follow Mounk’s argument. One reason this “new discrimination” is tolerated, he notes, is that “many academics assume that higher rates of admission for Asian-Americans would come at the price of lower rates of admission for African-Americans.” But the two issues are unrelated, he continues:

As recognized by the Supreme Court, schools have an interest in recruiting a “critical mass” of minority students to obtain “the educational benefits that flow from a diverse student body.” This justifies, in my view, admissions standards that look favorably on underrepresented groups, like African-Americans and Latinos. But it can neither explain nor justify why a student of Chinese, Korean or Indian descent is so much less likely to be admitted than a white one.

Then what does explain why an Asian-American student is so much less likely to be admitted than a white one? Mounk continues:

Conservatives point to Harvard’s emphasis on enrolling African-Americans (currently 12 percent of freshmen) and Hispanics (13 percent) but overlook preferences for children of alumni (about 12 percent of students) and recruited athletes (around 13 percent). The real problem is that, in a meritocratic system, whites would be a minority—and Harvard just isn’t comfortable with that.

Ah! There we have it, Mounk believes. But notice that this “explanation” mentions, almost in passing, “a meritocratic system,” as if that were what we had. If we did—at least one based heavily on SAT scores—the aforementioned academics would be right: Harvard would admit far more Asian-Americans and far fewer African-Americans and Hispanics—and perhaps fewer legacy and athletic applicants as well.

But under current law, what we have instead is a system in which discrimination based on academic merit varies. As Mounk correctly notes, universities may discriminate to achieve “diversity”—and, in particular, a “critical mass” of minority students. What that means, of course, is that the distinction between “majority” (read “white”) and “minority” (“non-white”) looms large in admissions decisions. What it means in practice, however, is that academic merit weighs more heavily in white than in non-white decisions—except in the case of Asian-Americans, where it weighs more heavily even than with whites. For Mounk, there’s the rub. Indeed, it gives new meaning to “reverse discrimination”—not against the majority, as we usually think of it, but against a minority.

So what’s to be done? Mounk grants, of course, that there are inescapable trade-offs among admissions criteria and that there is no one right answer to the question of which are to weighed more heavily than others. But he never goes to the principled solution—perhaps because our modern antidiscrimination law precludes that solution. For that, we’ll need to notice that Harvard is, after all, a private institution. As such, its board and administration should be free to shape its incoming classes however they wish, much as religiously affiliated institutions are mostly free to do today—and of course the rest of us would be free as well to judge Harvard’s policies as we wished. That would solve a host of problems, if our law permitted it. Unfortunately, it does not.

The issue is more difficult, however, in the case of public institutions, which belong to all of us. In fact, Students for Fair Admissions also has the University of North Carolina at Chapel Hill in its sights. But the problem there is that equal protection comes into play, which means that the university, like all public institutions, is forbidden to discriminate except on grounds that are narrowly tailored to serve its function. But what does that mean in practice? Does it mean that academic merit should be the dominant or perhaps the only admissions criterion? Or does it mean instead that the university should be open to all? Indeed, don’t the parents of less gifted children pay taxes to support the University of North Carolina too?

Reflections on the implications of our vexed antidiscrimination law bring us, then, to a more basic question: Given that these admissions decisions are so freighted with controversial and incommensurable value judgments, why do we even have public institutions of higher education (or of any level of education, for that matter)? Couldn’t these insoluble questions be avoided if all education, like religion, were private? Now there’s a modest proposal. See here for a fuller discussion.

UPDATE: Following the publication of this blog post I received an email from the deputy commissioner for public affairs at the New York City Taxi and Limousine Commission, who writes that there is no "TLC" regulation requiring that passenger information be included in trip data. The email reads (in part):

There is no such regulation.  We did, just this past week, approve a package of rules that will routinize the flow of required trip data, but it is—and always HAS been—limited to pick-up location, date/time, the dispatching base and affiliated base … no passenger information whatsoever.

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Original post:

Uber has not had a good month. In the wake of an Uber executive's worrying remarks regarding a possible smear campaign against critical journalists, the company has been on the receiving end of unflattering reporting related to its privacy policy and what one commentator has referred to as its "[something stronger than "jerk"] problem." While it is certainly the case that Uber does have legitimate privacy issues to address, it should not be forgotten that existing regulations could hamper some of the privacy reforms many Uber passengers would like to see implemented.

For many, Uber is more convenient than taxis because of its ease of use. Once a passenger creates an account a ride that is paid for automatically is only a push of a button away. Drivers and passengers are rated by each other, providing an incentive for both parties to behave well. However, while the Uber platform's simplicity is a major attraction, there have been disturbing reports of Uber drivers accessing passengers' information.

In March of this year, Olivia Nuzzi, a reporter for The Daily Beast, wrote about two creepy interactions with Uber drivers in New York City. In her writing about the first incident, Nuzzi describes her driver showing her a photo he had taken of her before the ride began. Nuzzi was understandably upset and rated the driver poorly. Uber deactivated the driver, who later emailed Nuzzi, The Daily Beast, and a journalist who had written about Nuzzi. After this incident Nuzzi was told by an Uber employee there was no way the Uber driver could have accessed her full name and that he must have recognized her. 

Yet the second incident reveals that Uber drivers can discover the full names of their passengers, thereby making them easier targets for stalking. Months after Nuzzi's first disturbing incident, one of her friends was contacted by an Uber driver over Facebook. The driver asked whether Nuzzi was single. When Nuzzi asked an Uber spokeswoman for comment regarding this incident she was informed that Uber drivers could in fact access the full names of their passengers. The Uber spokeswoman went on to explain that this data collection is possible because:

The New York City and Limousine commission, along with the vast majority of jurisdictions across the country, do require first and last names on what is commonly called a waybill or trip record. It’s intended to prevent gypsy cabbing in the taxi and livery industry… So Uber does provide trip sheets to drivers so that they can comply with those regulations that exist in most cities. 

Some readers might be wondering why Uber cannot simply anonymize passenger information in order to prevent the sort of stalking Nuzzi endured. The reason that passenger names are not made anonymous is that New York City Taxi and Limousine Commission (TLC) regulations prevent such information from being hidden, as Polly Mosendz explained this month in Newsweek:

While a user’s Uber profile only shows the first name and a small picture, the driver does have access to the full name as soon as the ride is ordered. Showing the full name opens up a number of issues, such as drivers Facebook messaging their riders or finding their homes, but Uber is unable to anonymize this unless the TLC changes its regulations.

In New York City, it seems that Uber must find a way to tackle TLC regulations in order to prevent the sort of awful behavior Nuzzi reported.

Of course, there are other complaints related to Uber and privacy, such as the tracking of journalists and "known people." Uber is investigating the improper use of its so-called "God View" tool, which allows corporate employees to view the current location of Uber cars and users looking for rides. According to Uber, a New York executive's use of "God View" to track a journalist on her way to Uber's New York headquarters was in violation of the company's privacy policy.

Perhaps unsurprisingly, Uber announced last week that it was working with the law firm Hogan Lovells in order to strengthen its privacy policy. It is welcome news that Uber is addressing the legitimate privacy concerns that have been raised by some passengers, but those watching Uber’s attempts to reform its privacy policy should keep in mind that regulations make that task considerably more difficult.

The shameful Obama Administration practice of proposing dreadful environmental regulations on or near national holidays continues. Last year they were on global warming, and this year it's low-level ozone. Neither regulation will have a detectable "benefit," but both impose enormous costs. Perhaps President Obama’s placing this announcement in the news cycle just before Thanksgiving and Black Friday is indicative of how popular he thinks these regulations will be.

So it goes. The lessons of November 4 remain unlearned, with the administration doubling down in the service of all of its green friends that didn't vote. The fact is that the ground zero of the thermonuclear electoral explosion three weeks ago was in the coal mining areas of Kentucky and West Virginia. In Kentucky, Mitch McConnell was supposedly in a close race with Alison Grimes and instead won by a whopping 18 points. Nick Rahall, a 19-term (!) Democratic congressman from West Virginia saw a similar swing: he won his seat by eight points in 2012 and lost by 10 in 2014, with the net change in two years totaling 18. 

The proposed ozone rules are yet another example of what happens when good ideas go bad. Pretty much everyone agrees that EPA, along with the states, have done a remarkable job in cleaning up our air. The eye-stinging smogs of Los Angeles are history. Pittsburgh was once so dirty that masonry turned black, causing people to wonder what was happening in their lungs. We have done great things and enjoy air that is cleaner than that of any economic superpower in the history of this planet.

Environmental protection is what systems engineers call a “heuristic device,” defined as “a solution which is not guaranteed to be optimal, but is good enough for a given set of goals.” The problem, of course, is that heuristic devices don't tell you when to stop. Instead they keep being applied, in this case by the bureaucracy-for-life known as the Environmental Protection Agency, producing massively diminishing returns for massively increased costs. And, at President Obama's urging, it will never hear the word “stop.”

Millions of people are increasingly disenchanted with the administration's high-handed approach to command-and-control regulations imposed when we aren't supposed to be looking.  If enough people remain grumpy about this, Barack Obama may yet again stand in the way of a Hillary Clinton presidency.

As I discussed in an op-ed published at Al Jazeera America last week, it seems as though the Ukraine crisis is slowly solidifying into a ‘frozen conflict.’ This is bad for everyone:

Allowing the Ukraine crisis to metastasize into a frozen conflict effectively guarantees future conflict in the region. It leaves the government in Kiev with a long-term insurgency within its borders, costing it dearly and inhibiting the greatly needed reform of the Ukrainian state. In addition, it keeps Russia and the West locked in a diplomatic stalemate and sanctions war which benefits no one.

The intrinsic uncertainty of the situation in Eastern Ukraine continues to pose the very real threat of escalation. Last week saw tensions ratchet up as the OSCE reported large convoys of weapon and armor crossing the border, but fears of a new offensive by separatists proved unfounded. Such periods of heightened tension are likely to continue, along with consistent low-level violence which has become the hallmark of the conflict.

Some parts of the U.S. government are also keen to escalate the conflict by providing Ukraine with lethal aid. There is strong pressure from Congress to do so, and Sen. John McCain, widely expected to be the next chairman of the Senate Armed Forces Committee, has promised to work closely with his colleagues on the Intelligence and Foreign Relations committees to arm Ukraine. Although the Obama administration has thus far limited aid to non-lethal and humanitarian supplies, there may be some support for lethal aid within the administration too. Deputy National Security Advisor Tony Blinken, during his confirmation hearings for Deputy Secretary of State, divulged that the White House is considering lethal aid to Ukraine, and that he believed such aid would discourage further Russian aggression.

Even ignoring the potential of such aid to escalate the situation, it is unlikely to help. Ukraine’s armed forces are weak, requiring substantial reform and retraining. Lethal aid to Ukraine will antagonize Russia while doing nothing to win back the separatist regions.

Ukraine’s other problems are myriad: The country is in major economic trouble, and the Ukrainian political system is characteristically dysfunctional. A high-profile visit to Kiev last week by Vice President Biden was turbulent, with American officials reportedly irate that competing factions cannot agree on the formation of a new government a month after Ukraine’s parliamentary elections. Ukrainian leaders also recently announced that they would hold a referendum on NATO membership, a move which is both asinine (NATO member states determine membership, not voters) and inflammatory.

At this point, there are few good solutions to the Ukraine crisis. The longer the current ‘ceasefire’ continues, the more likely we are to see escalation. It is increasingly baffling, therefore, that American and European leaders aren’t seeking a political solution to the crisis. No progress was made at the G20 summit in Australia, though leaders employed harsh rhetoric towards Russia. Nor does Ukraine appear to be a priority for the Obama administration, with reports indicating that one reason for Chuck Hagel’s departure as Secretary of Defense was his strong insistence that the White House pay more attention to Russia, which he considers a larger threat than ISIS. But the Wall Street Journal reports that such comments were not well received by the White House, with one official noting: “I can’t imagine us focusing more on Russia.”

Such thinking is short-sighted. As I argue in the article, we must seek a diplomatic solution to the crisis. Delay will only lead to escalation and further conflict. 

The United States is over-burdened militarily and effectively bankrupt financially, but Washington is determined to preserve every base and deployment, no matter how archaic. Case in point: the many military facilities in Okinawa. No wonder the Okinawan people again voted against being conscripted as one of Washington’s most important military hubs.

The United States held on to the island after World War II, finally returning the territory to Japan in 1972. Even now, the Pentagon controls roughly one-fifth of the land.

Opposition to the overpowering American presence crystalized nearly two decades ago after the rape of a teenage girl by U.S. military personnel. The bases remain because no one else in Japan wants to host American military forces.

After a decade of negotiation, Tokyo and Washington agreed in 2006 to shift Futenma airbase to the less populated Henoko district of Nago city. Few Okinawans were satisfied.

Three years later, the Democratic Party of Japan took power and promised to address Okinawans’ concerns. But the Obama administration proved to be as intransigent as its predecessor, thwarting the efforts of then-Prime Minister Yukio Hatoyama. 

Tokyo has since attempted to implement the relocation agreement, despite strong local opposition. However, earlier this month Naha Mayor Takeshi Onaga defeated Kirokazu Nakaima on an anti-base platform.

Onaga’s victory demonstrates the depth of popular feeling. Nakaima had flip-flopped in favor of the relocation plan in return for $2.6 billion in economic aid from Tokyo and enjoyed strong support from Prime Minister Shinzo Abe. Onaga campaigned against Tokyo’s attempt to buy off islanders and won handily.

The Abe government promised to move forward with its relocation plan, but faces early elections on December 14. Although the Liberal Democrats are expected to win, they likely will possess a smaller majority and will have a correspondingly harder time overriding local opinion against the bases.

“Okinawa has suffered a lot. Why do we have to suffer more?” Onaga asked before his election. There’s no good answer.

Nakaima cited Tokyo’s confrontation with China. Other advocates of America’s base presence pointed to North Korea. The Marine Corps highlighted all of the nearby places where the Marine Expeditionary Force could be quickly deployed.

But Washington should not be plotting new wars. The United States should leave day-to-day defense responsibilities to friendly Asian states, most notably Japan, and pull its forces back to America. Seven decades after the end of World War II, there’s no need for permanent U.S. garrisons in the region.

Devoting only one percent of its GDP to defense has allowed Tokyo to create a potent “Self-Defense Force.” Spending more would enable Japan to build a military well able to deter Chinese adventurism. South Korea needs no help in confronting the so-called Democratic People’s Republic of Korea.

Australia, Vietnam, Singapore, and other countries have been boosting their military outlays in response to increasing Chinese assertiveness. India is expanding its involvement in Southeast Asia, acting as another counter to Beijing.

As I point out in Forbes online:  “Pulling U.S. forces back from Japan—there’s no reason to stop with the units deployed in Okinawa—would shift the basic responsibility for that country’s defense to Tokyo. Japanese citizens then could decide how to fill the gap. It’s not America’s place to tell its friends how much they should spend on what.”

A genuine “rebalancing” by America, not the fake transformation heralded by the Obama administration, almost certainly would impel Tokyo to do more, though exactly what would be a matter of debate. Such a shift would place greater pressure on Japanese officials to forge better relations with their neighbors, starting with South Korea.

Of course, the Japanese people could decide to do nothing, which would be their right. But the consequences of making that choice would be their own as well.

Washington’s defense commitments and force deployments should be adapted to circumstances. After nearly 70 years, Okinawans deserve relief. So do Americans, who pay to defend most of the globe.

James L. Buckley’s new book, Saving Congress from Itself, examines federal aid-to-state programs. The federal government spends more than $600 billion a year on 1,100 such programs for education, welfare, and many other state and local activities.

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The whole system is a damaging mess, and Buckley proposes in his book that Congress “eliminate all federal grants-in-aid to state and local governments.” That action would “have a profound effect on how we govern ourselves.” A profoundly positive effect, that is, which is a bold claim, but I’ve come to the same conclusion in my writings on the aid system (here, here, and here).   

Buckley’s analysis is grounded in his distinguished career as a U.S. senator from New York, a judge on the U.S. Court of Appeals for the D.C. Circuit, and a high-level Reagan administration official. He argues that repealing aid-to-state programs would free the federal government to focus on truly national matters, put the government on sounder financial footing, and improve the ability of states to increase the quality and efficiency of their own programs.

Buckley’s book is a fairly quick read at 95 pages, but he hits the key legal and practical problems with aid to the states. Buckley believes, as I do, that the aid system is a hidden, or at least underexamined, factor steadily corroding the quality of American governance, particularly since the aid expansion of the 1960s. He notes, for example: “Congress’s current dysfunction is rooted in its assumption, over the years, of more responsibilities than it can handle. As a result, its members now live a treadmill existence that no longer allows them time to study, learn, and think things through. Instead, they substitute political reflex for thought.”

Federal aid is not the free lunch that state governments think it is. Nonetheless, a free lunch is available to you this Monday: please join James Buckley, Roger Pilon, and me at a Capitol Hill forum on December 1 to discuss the book. Details are here.

The administration is working to implement the DATA Act, which, if implemented well, could produce a sea-change in government transparency, and a shift of power from government insiders to the people.

Yesterday, I submitted to the Treasury Department's Fiscal Service our 2012 "Grading the Government's Data Publication Practices" study, along with the following comment, which notes the glaring absence of a machine-readable government organization chart.

In partial response to the notice, I'm pleased to submit the attached study, which may assist your inquiry.

Over several years, I have been studying transparency, which remains largely undelivered because it has been undefined.

In "Grading the Government's Data Publication Practices," you'll find the results of that study. Transparency is produced by data that comes from an authoritative source, data that is complete, that is machine-discoverable, and that is machine-readable. When good data publication conditions obtain, the public and government managers alike, through information services, apps, and websites, will make use of the data to make the government more legible.

The study graded the quality of data publication about key entities in the legislative and budgeting/spending processes. The striking upshot was the absence of good data about a very elemental topic: the organizational units of the federal government. There is no machine-readable organization chart for the U.S. federal government. The absence of a machine-readable government organization chart stifles public and congressional oversight, and it frustrates internal management.

Producing machine-readable data that articulates what the organizational units of the federal government are should be a priority. It is probably one of the easier things to do technically, and it will produce important gains in transparency. Failure to produce and maintain a machine-readable federal government organization chart would also stand out if it is not done early on in DATA Act implementation.

We are currently in the process of re-grading data publication in the areas covered by the prior study. In future iterations of the grading study, I look forward to reporting that there is well-organized, complete information about all agencies, bureaus, programs, and projects, and the relationships among them.

Thank you!

Jim Harper

A cynic---and there might be one or two reading this blog!---would say that the government will never make itself transparent. Well, it certainly won't if you don't ask it to...