Balkinization: One of These Things is Not Like the Others

One of These Things is Not Like the Others

Marty Lederman

In a post earlier today, guest-blogger Mike Paulsen suggests that a cert. petition currently pending before the Supreme Court is redolent of such landmark race-discrimination cases as Brown v. Board of Education, Cooper v. Aaron, and, especially, Runyon v. McCrary and Bob Jones Univ. v. U.S. (both of which involved unlawful racial segregation in private schools). [NOTE: Unbeknownest to me and Mike, the Supreme Court dismised the petition last Friday, pursuant to an agreement among the parties (see S. Ct. Rule 46.1).]

Mike characterizes the admissions practices of the Kamehameha Schools in Hawai'i as "brazenly racist" -- analogous to the practices in those nefarious cases of infamy --- and goes so far as to imply some sort of kinship between Orville Faubus and John W. Davis, on the one hand, and Prof. Kathleen Sullivan of Stanford, on the other, because Kathleen is representing the Kamehameha schools.

Notably absent from Mike's post is any acknowledgement that the Kamehameha policy is intended as a remedy for the past harms inflicted by the national government on Native Hawai'ian peoples -- or that that same objective also underlies several current federal statutory preferences for Native Hawai'ians.

Reasonable minds can and do differ on whether, in light of that remedial purpose, the Kamehameha admissions program violates the statute at issue in the case, 42 U.S.C. 1981 -- and perhaps even on the narrower question currently before the Court, which is whether this sui generis case is is cert.-worthy. (For various perspectives on the statutory question, see the opinions in the court of appeals' decision.)

But, with all respect, to suggest that the case is Runyon Redux, or that Cooper v. Aaron is an apt analogy, is simply disingenuous, in that it quite deliberately elides substantial differences in the facts and contexts of the cases, and it ignores the dramatically different rationale for the race-conscious practice in the current Kamahemeha case.

Those infamous earlier cases such as Cooper and Runyon dealt with schools that viewed and treated African Americans as racially inferior, and that discriminated against African-American students as a means of effecting racial segregation throughout the public life of the American South.

Whatever one thinks of the particular legal issue in Kamehameha, the facts in that case are a far cry from Jim Crow or from the private race-segregation that followed in its wake in cases such as Runyon.

That much can be seen quite clearly from the Statement of Facts in Kathleen Sullivan's Brief in Opposition, which includes the following:

Kamehameha Schools has sought from its inception to fulfill Princess Pauahi's intention to use education to lift up the Native Hawaiian people from the devastation they had suffered from Western contact -- through self-help, “without asking any favors which they were not likely to receive.”

Kamehameha Schools' mission is to advance the educational opportunities and achievement of Native Hawaiian children, defined as descendants of the indigenous inhabitants of the islands prior to the first Western landfall in 1778. The educational programs operated by the Schools seek to redress the profound educational deficits that Native Hawaiian people continue to suffer. As Congress found in the 2002 Native Hawaiian Education Act (“NHEA”), Native Hawaiians lag behind other groups markedly with respect to educational test scores, special education needs and representation in higher education. 20 U.S.C. § 7512 (14)-(18); see Pet. App. 168a-171a. These educational deficits contribute to Native Hawaiians' place at or near the bottom of all groups in Hawaii with respect to wealth, income, health and other indicators of social welfare.

* * * *

Congress has enacted numerous programs for the specific benefit of the Native Hawaiian people, based on the recognition that past actions of the United States itself have done Native Hawaiians grievous harm. Congress has acknowledged that “Native Hawaiians are a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago, . . . [who] lived in a highly organized, self-sufficient subsistence social system based on a communal land tenure system with a sophisticated language, culture, and religion.” 20 U.S.C. § 7512(1). This successful civilization was virtually destroyed by disease and commercial exploitation after Western contact began in 1778, and by the twentieth century, the Native Hawaiian population had dramatically declined. See Pet. App. 160a-161a.

The Hawaiian Kingdom was unlawfully overthrown in 1893. Congress has expressly admitted the United States' complicity in the overthrow and has formally apologized for those actions. 1993 Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510, 1513 (1993); see Pet. App. 161a-163a. Congress likewise has recognized that the resulting economic and social changes in Hawaii “have been devastating to the population and to the health and well-being of the Hawaiian people.” 107 Stat. at 1512. In 1896, the use of the Hawaiian language was banned as a method of instruction in the schools, a ban that was lifted only in 1986. Indigenous art, music, craft and ceremonies likewise were nearly destroyed. Pet. App. 163a-165a. The United States annexed Hawaii in 1898.

To remedy these harms, Congress has enacted numerous laws directing programs specifically to Native Hawaiians. These include particular benefits for Native Hawaiians in educational programs. The Hawkins-Stafford Elementary and Secondary School Improvement Amendments of 1988, Pub. L. No. 100-297, 102 Stat. 130 (1988), authorized “supplemental programs to meet the unique educational needs of Native Hawaiians” and federal grants to Native Hawaiian Educational Organizations to help increase educational attainment among Native Hawaiians. 20 U.S.C. §§ 4902-03, 4905 (1988) (repealed 1994).

Congress again acted to remedy the educational disparities faced by Native Hawaiians in 1994, when it enacted the first NHEA. See Pub. L. No. 103-382 § 101, 108 Stat. 3794 (1994), (originally codified at 20 U.S.C. §§ 7901 et seq. (2000)). Recognizing that Native Hawaiians continue to have disproportionately low levels of educational attainment, id. § 7902(17), the NHEA established educational programs reserved expressly for Native Hawaiian students, id. §§ 7903-7910.

In 2002, Congress reenacted the NHEA, authorizing a variety of educational programs for Native Hawaiians in recognition that “Native Hawaiian students continue to begin their school experience lagging behind other students in terms of readiness factors such as vocabulary test scores,” “continue to be underrepresented in institutions of higher education and among adults who have completed four or more years of college,” and “are more likely to be retained in grade level and to be excessively absent in secondary school.” 20 U.S.C. § 7512(16). The educational programs funded by the NHEA are targeted exclusively at Native Hawaiians. See 20 U.S.C. § 7515(3) (Supp. II 2002).

Such congressional policies continue to the present. In February, 2007, Congress again authorized the appropriation of $62.5 million in federal funds for exclusive Native Hawaiian benefit programs, including nearly $34 million for Native Hawaiian education programs under the No Child Left Behind Act.

I know Mike sincerely believes that this remedial rationale is not a justification for the admissions policy of the Kamahemeha Schools, that the admissions policy of the schools violates section 1981 -- and, presumably, that the federal statutes cited in the BIO are themselves unconstitutional. Fair enough. Those arguments deserve debate on their merits.

But it does not advance the discussion in any meaningful respect, frankly, to simply assert a direct analogy to cases such as Cooper and Runyon.

In this regard, it is worth pointing out, as well, that the dissenters in the court of appeals did not treat Kamehameha as the second coming of Cooper v. Aaron. To the contrary, they indicated that as a matter of first impression, they would not have held that the statute bars this sort of private conduct at all -- that they were in dissent only because of Warren-Court-era decisions that they obviously doubt, such as McDonald v. Santa Fe Trail Co. and Jones v. Alfred Mayer Co., which held not only that section 1981 prohibits discrimination against whites, but also that Congress has the power under the Thirteenth Amendment to prohibit such discrimination (a holding that is critical to the constitutionality of the pending hate-crimes statute I discussed here the other day). And Judges Kleinfeld, Kozinski and O'Scannlain went so far as to write that "[t]he Kamehameha Schools are admirable in many ways, and there are good historical and social reasons why reasonable people might want to follow just such [an admissions] policy." Indeed, Judge Kleinfeld wrote that because of those judges' "admiration for Kamehameha Schools," he "might have preferred to avoid deciding this case, if some jurisdictional defect existed."

Now, does that sound like Cooper v. Aaron?

P.S. In light of Mike's past impassioned defense of an alleged constitutional right of private discrimination in schools (especially religious schools) and in cases such as Boy Scouts v. Dale, I was surprised not to see any serious discussion of that constitutional issue in his post-- let alone any attempt to explain why Mike thinks the Boy Scouts' constitutional right to discriminate against gay men is more worthy of respect than the right of the Kamehameha Schools to attempt to remedy past gross injustices against a discrete group. (FWIW, I would not recognize that constitutional right -- I think the First Amendment analysis in Runyon was right; and that Dale was wrongly decided.)

Posted 12:30 AM by Marty Lederman [link]

Comments:

Professor Lederman's response misses Professor Paulsen's point. I'm sure Professor Paulsen recognizes (or would) the reasons behind the admission practics of the Kamehameha schools in contrast to the racial segregation of the past. But, that is largely irrelevant to his argument. His argument concerns the means--total racial segregation. So what if its purpose is "benign." He is making the point that the means used are abhorrent in a racial context and any benign or remedial intent does not substantively change his objection to them.

# posted by

humblelawstudent : 9:19 AM

He is making the point that the means used are abhorrent in a racial context and any benign or remedial intent does not substantively change his objection to them.

This is what I've never understood about the opposition to affirmative action programs. They must, necessarily, take race into account precisely because it was race which was the basis for the discrimination they attempt to remedy. If programs can't take groups into account, then society becomes helpless against those who (wrongly) do.

# posted by

Mark Field : 10:01 AM

Professor Lederman:

Those infamous earlier cases such as Cooper and Runyon dealt with schools that viewed and treated African Americans as racially inferior, and that discriminated against African-American students as a means of effecting racial segregation throughout the public life of the American South.

Whatever one thinks of the particular legal issue in Kamehameha, the facts in that case are a far cry from Jim Crow or from the private race-segregation that followed in its wake in cases such as Runyon.

The racial discrimination in all of these cases is based on the assumption that the target races are inferior and need to be separated from the rest of society for their own good and the good of society.

For example, compare these passages from your post:

Those infamous earlier cases such as Cooper and Runyon dealt with schools that viewed and treated African Americans as racially inferior, and that discriminated against African-American students as a means of effecting racial segregation throughout the public life of the American South.

Whatever one thinks of the particular legal issue in Kamehameha, the facts in that case are a far cry from Jim Crow or from the private race-segregation that followed in its wake in cases such as Runyon.

That much can be seen quite clearly from the Statement of Facts in Kathleen Sullivan's Brief in Opposition, which includes the following:

Kamehameha Schools has sought from its inception to fulfill Princess Pauahi's intention to use education to lift up the Native Hawaiian people from the devastation they had suffered from Western contact -- through self-help, “without asking any favors which they were not likely to receive.”

Kamehameha Schools' mission is to advance the educational opportunities and achievement of Native Hawaiian children, defined as descendants of the indigenous inhabitants of the islands prior to the first Western landfall in 1778. The educational programs operated by the Schools seek to redress the profound educational deficits that Native Hawaiian people continue to suffer. As Congress found in the 2002 Native Hawaiian Education Act (“NHEA”), Native Hawaiians lag behind other groups markedly with respect to educational test scores, special education needs and representation in higher education. 20 U.S.C. § 7512 (14)-(18); see Pet. App. 168a-171a. These educational deficits contribute to Native Hawaiians' place at or near the bottom of all groups in Hawaii with respect to wealth, income, health and other indicators of social welfare.

The idea that the government should be permitted to engage in racial discrimination whenever it considers the target race to be inferior is abhorrent no matter what the motivation may be.

# posted by

Bart DePalma : 12:07 PM

I'm not sure I fully understand, though this shouldn't imply I necessarily disagree with AA, how it is not a matter of "class" legislation.

"Caste," implying inferiority, yes. "Class," implying group vs. group, I'm not so sure. As to remedy, I think it should be noted that the 14A speaks of "equal protection of the laws." I'm not exactly how the school cases in front of the Court now fails that. I might be misunderstanding the reference though.

It takes race somewhat into account, but to promote an end that is meant to favor all, and all students are affectd equally. Each has their race, among other things, taken into consideration to promote integration.

An end many argue is necessary for just what the 14A states. Race neutrality programs as mandated by the words imho is a much more arguable -- by implication -- call.

BTW, I'm not sure if private schools (Runyon) and expressive organizations (Dale) are equivalent. I honestly favored the majority opinion. I rather not micromanage the scouts, arguing its stance on gays is not a compelling enough aspect of their message that their scoutmaster policy is not protected.

I'd add that the former case, see the recent hate law discussion, has a 13A flavor that the latter case might not.

# posted by

Joe : 12:18 PM

For the purposes of illustration, let us slightly change the Hawaii scenario.

In educational performance, on average, the Asians perform the best, the European descendants in the middle and the native Hawaiians last.

The theory behind the Hawaiian only academy is that Hawaiians cannot perform with the Asians and Europeans and need to be segregated for their own good into a separate school.

You could make the same argument for the Europeans vis a vis the Asians. We Europeans obviously cannot compete with the Asians and also need to be segregated off into our own schools for our own good.

How does it feel to be labeled an inferior race?

Racial discrimination is wrong in all circumstances for all reasons.

# posted by

Bart DePalma : 12:36 PM

This comment has been removed by the author.

# posted by

Anonymous : 1:11 PM

Mark,

Frank Luntz is wrong. I saw him get the crap kicked out of him (his description) on Bill Maher's show last night. It was Bill, Arianna Huffington and Paula Poundstone, who pounded him pretty good, too. I'd bet a video will be floating around soon. In spite of what Luntz says, liberals were using his linguistic framing ideas long before he ever hit high school. And your comment rings true like the sound made when a hammer hits a nail squarely on the head.

This is what I've never understood about the opposition to affirmative action programs. They must, necessarily, take race into account precisely because it was race which was the basis for the discrimination they attempt to remedy. If programs can't take groups into account, then society becomes helpless against those who (wrongly) do.

Calling affirmative action race based discrimination is a case of reverse Luntzian framing. It's another case of IOKIYAR. All the manipulative equivocating becomes transparent after a point.

It's not an Inheritance Tax, it's a Death Tax! Two things are certain in life, death and taxes and the dead don't pay taxes. It's an inheritance tax.

# posted by

Anonymous : 1:15 PM

"is simply disingenuous"

I submit that this is being way too generous. Reviewing Mr Paulsen's post, I find the following usages:

"segregated ", "excluding blacks", "segregation", "excluded race", "racist": paragraphs 1-6

"favored race", "racially exclusive": paragraaphs 3,5

Note that the use of emotionally charged language meant to suggest disadvantaging a disfavored group, an unequivocal no-no, substantially outnumbers the much less charged language of advantaging a favored group - a legitimately debatable and debated issue. The former is irrelevant to the actual facts of the case which involves the latter (there is, I believe, no suggestion that whites are specifically excluded).

Note also that section 1981 is mentioned exactly twice, rather in passing, despite it's application being the essential issue as best I can tell from skimming the 9th C. opinion.

So why would a top-notch law prof do such a thing. Clearly, it can't be inability to understand the issues and facts of the case (I'm a retired EE, and I had no trouble at all). It can't be confusion over the meaning of these quite straightforward terms. So what gives?

My take, FWIW. This is a standard tactic of the ideologically driven (see STACLU for copious examples): describe the facts of the case in the most inflammatory language, whether applicable or not, and reduce the outcome to a simplistic (and often inaccurate) description ("treats the poor as second-class citizens", "drives prayer out of the public square", "denies access to contrary views", "discriminates against whites") while ignoring the legal complexities which actually underlie the decision. But this tactic only works when the audience is too biased and/or ignorant to see what's going on; hence, I would have thought it inapplicable in this forum. Being undoubtably in the lower decile of the readership in terms of legal sophistication but none-the-less able to see through it, I think everyone else should feel quite insulted by the post.

- Charles

# posted by

Charles T. Wolverton : 2:04 PM

The idea that the government should be permitted to engage in racial discrimination whenever it considers the target race to be inferior is abhorrent no matter what the motivation may be.

This a ridiculous reduction of the complexity surrounding racial discrimination and nationalism. As Mark Field pointed out, once racist policies have defined and denigrated a group, any remedy that attempts to repair the damage done by those policies must identify that group by a similar definition.

# posted by

PMS_CC : 7:05 PM

"Bart" DePalma:

The racial discrimination in all of these cases is based on the assumption that the target races are inferior and need to be separated from the rest of society for their own good and the good of society.

For example, compare these passages from your post:

[snip quoted passages; look up for specifics]

The idea that the government should be permitted to engage in racial discrimination whenever it considers the target race to be inferior is abhorrent no matter what the motivation may be.

OK, I give, "Bart": Where in the material does the gummint "consider[] the target race to be inferior" or is it "based on the assumption that the target races are inferior"?

I went over it a couple of time, and I'm just not seeing it.

Just to help you a bit with your befuddled thinking and 'logic', I'd note that one of the retorts that you "anti-affirmative action" people keep tossing out (as to why affirmative action is no longer necessary) is that "equal protection guarantees equal opportunity, not equal results...." Care to explain what the implications of that are WRT the situations we see? Isn't that comment itself "racist" in just such a manner as you accuse others of above when applied to the situation at hand? Or do you admit that there's still structural inequality that prevents "equal results"?

To further help you, I'd note that the assumption is not that one race is inferior, despite your halucinations (or prejudices?) to the contrary. The assumtion (which we could actually discuss on the merits) is that new (or different) social structures may be more effective in remedying the differential outcomes that we do observe, particularly when the remnants of prior discrimination and/or present continuing non-governmental racial prejudice are taken into account.

FWIW, I am not a strong believer in the solutions suggested (single-sex schools or such schools as in the present case); there may be more effective means for dealing with continuing racial inequalities ... unfortunately the most effective means would require nongovernmental participation which may be beyond the abilties of government to implement....

Cheers,

# posted by

Arne Langsetmo : 7:41 PM

OK, I give, "Bart": Where in the material does the gummint "consider[] the target race to be inferior" or is it "based on the assumption that the target races are inferior"?

I bolded the key passages for you so you would not miss them. The quoted brief flat out called the native Hawaiians failures in the integrated schools and argued that this was a reason to segregate them out for their own good. The fact that the governments did not use the term "inferior" does not change the fact that Hawaiian academic inferiority is the basis of their argument.

Another pernicious underlying assumption of this bald faced racial discrimination is that it assumes that native Hawaiian's all think and perform alike because simply because of their race. This assumption also underlies all government racial discrimination past and present.

# posted by

Bart DePalma : 11:28 AM

Mark,

I completely disagree. Affirmative action programs can define who they help by almost any criteria. The fact that race was used to hurt some people does NOT necessitate that race must be used to fix the error. There are many race neutral means for helping those who truly need it. Now, we can argue over various ideas or programs but you are flat wrong to say that only by using race can we fix it.

# posted by

humblelawstudent : 3:08 PM

The fact that race was used to hurt some people does NOT necessitate that race must be used to fix the error.

You'll have to elaborate on this. It seems pretty obvious to me that if (a) race was selective characteristic used to harm, and (b) it's very difficult to identify precise victims and/or the precise extent of the harm, then we have little choice but to use race to some extent in trying to remedy the wrongs done. I'm curious how you would redress the harm without using race.

# posted by

Mark Field : 3:36 PM

"Bart" DePalma:

[Arne]: OK, I give, "Bart": Where in the material does the gummint "consider[] the target race to be inferior" or is it "based on the assumption that the target races are inferior"?

I bolded the key passages for you so you would not miss them....

Hey, "Bart", unlike you, I read for comprehension and read the bolded parts (as well as the rest) more than once.

Here's the quotes you pointed out:

"Kamehameha Schools' mission is to advance the educational opportunities and achievement of Native Hawaiian children,..."

"Native Hawaiians lag behind other groups markedly with respect to educational test scores, special education needs and representation in higher education. 20 U.S.C. § 7512 (14)-(18); see Pet. App. 168a-171a. These educational deficits contribute to Native Hawaiians' place at or near the bottom of all groups in Hawaii with respect to wealth, income, health and other indicators of social welfare."

Where in these quotes does the gummint "consider[] the target race to be inferior"? Keep in mind that this was your explicit claim.

How are these quotes "based on the assumption that the target races are inferior"? Once more, that was your explicit claim.

... The quoted brief flat out called the native Hawaiians failures in the integrated schools and argued that this was a reason to segregate them out for their own good....

Yeah, yeah, yeah. They repeated the uncontested fact that native Hawai'ian student fare poorly in present schools. Where do they attribute that to these students' "inferior[ity]"? Or is that an assumption that you tacked on? If so, I think we know who the racist is here (we've seen your bigotry in full flower in other threads as well, I'd note).

... The fact that the governments did not use the term "inferior" does not change the fact that Hawaiian academic inferiority is the basis of their argument.

What a load of horsecrap. The gummint thinks the students will do a bit better in a different environment. If the students are "inferior" (your words), then a different environment wouldn't help.

Kind of reminds me of the debate about Head Start. At the time, there was a claimed 15 point difference in mean IQ of whites and blacks. There were those such as Herrnstein that insisted the differences were innate. But studies of the Head Start program showed somewhere around a 15 point improvement in scores for those given the advantage of the program. The response of the RW horse-patooties was, yeah, well, once the students leave the program, the scores lapse again; see?, you just can't help them. In fact, any thinking person should note that one of the better tests for the efficacy of a treatment is if you see the reverse effect on cessation of the treatment....

Another pernicious underlying assumption of this bald faced racial discrimination is that it assumes that native Hawaiian's all think and perform alike because simply because of their race....

Another example of "Bart" seeing things that no one else can see. My suggested solution is titrating the Haldol up a notch.

... This assumption also underlies all government racial discrimination past and present.

No.

Here's a question for you, "Bart": Two identical twins, raised identically. Who would have an easier time making a million bucks? One who started with nothing, or the other one whom you spotted a million bucks to, to start? If the first fails where the second succeeds, are you going to claim the first was "inferior" to the second?

Cheers,

# posted by

Arne Langsetmo : 4:16 PM

re BdP comment:

Note that use of words like "inferior" and "segregated" instead of alternatives more appropriate to the context (eg, "disadvantaged") together with ignoring entirely the underlying problem and possible alternative solutions is precisely the tactic addressed in my earlier comment.

They simply can't help themselves - it's part of the ideologue package.

-Charles

# posted by

Charles T. Wolverton : 2:29 PM

Mark,

You simply target the disadvantaged. That way the aid goes to those who need it and resources aren't wasted on those who don't.

I should note that I agree with the use of race in very specific circumstances, like if a particular town government has had an obvious program of racial exclusion among workers, then perhaps yes, the remedial plan should account for race. But, by and the large, the problems of structural (or institutional) racism are better met with a focus on disadavantaged individuals rather than by race.

# posted by

humblelawstudent : 3:27 PM

You simply target the disadvantaged. That way the aid goes to those who need it and resources aren't wasted on those who don't.

The problem is that this does not distinguish those who were discriminated against from those who were not. It's not a remedy, it's a social program.

Now, I'm hardly against social programs, but I don't see why we should just ignore the serious wrong done by racial discrimination and institute programs which spend 90% of the money on those who benefited from discrimination rather than those who suffered.

# posted by

Mark Field : 4:25 PM

Mark,

So, the disadvantaged benefitted as well as the advantaged? That is a problematic argument. If they reaped such benefits, why are they disadvantaged then? P.S. The answer to this argument just sets up my next argument.

# posted by

humblelawstudent : 8:55 PM

So, the disadvantaged benefitted as well as the advantaged? That is a problematic argument. If they reaped such benefits, why are they disadvantaged then? P.S. The answer to this argument just sets up my next argument.

Absolutely they did. Basically, every white person today is better off than he/she would have been without the advantages of 350 years of government support of whites and discrimination against blacks. If today a black and a white have hypothetically reached the same socio-economic level, the black had to work harder and overcome more to reach that level. That wrong deserves compensation.

Plus, of course, we must remember that discrimination continues today, so AA plays some role in remedying that continuing wrong.

# posted by

Mark Field : 10:47 PM

I don't know a ton about this, but from reading above, this strikes me as being very similar to City of Richmond v. J.A. Croson. now granted that was a city and not congress, but does that make a difference? This policy of the school doesn't seem to pass strict scrutiny? but maybe it does? Now we'll never know...

# posted by

Joel : 2:12 AM

Arne Langsetmo said...

Here's a question for you, "Bart": Two identical twins, raised identically. Who would have an easier time making a million bucks? One who started with nothing, or the other one whom you spotted a million bucks to, to start? If the first fails where the second succeeds, are you going to claim the first was "inferior" to the second?

That is a ridiculous comparison with education. No one is born in this world with an education. It appears from the brief that native Hawaiians go to the same schools as everyone else and are on average lagging academically and this is used as an argument to racially segregate them in a separate school.

# posted by

Bart DePalma : 9:33 AM

ctw said...

re BdP comment: Note that use of words like "inferior" and "segregated" instead of alternatives more appropriate to the context (eg, "disadvantaged") together with ignoring entirely the underlying problem and possible alternative solutions is precisely the tactic addressed in my earlier comment. They simply can't help themselves - it's part of the ideologue package.

You have it backwards.

Calling native Hawaiian's "disadvantaged" by going to the same schools falsely creates a problem where there is none.

What the proponents of this government racism are in fact doing is calling native Hawaiians academically inferior on the same settings and using that as a basis for their segregation at a separate school.

No matter how you apologists for government racial discrimination spin it, that is the brutal truth of your proposition.

# posted by

Bart DePalma : 9:39 AM

Mark,

Okay, so you are saying that every white is better off now than they would have been because of the slavery and oppression of blacks. Well, please explain then how the plantation system helped whites? Aside from the small minority of whites that owned plantations and owned the vast majority of slaves, most whites in the South (let alone the North) didn't own slaves. Furthermore, black labor supressed white laborer wages. As well, the economic system of the South was not nearly as beneficial to the mass of the people as the economy in the North. So, slavery, far from helping most whites, more likely hurt the vast majority in the South and did little to help those whites in the north.

Additionally, many (most?) of the Caucasians in this country are the children of immigrants post-Civil War. (most of which who didn't take up residence in the Jim Crow south). So, please explain how they were "helped."

What about recent black immigrants, should they be excluded from affirmative action programs? If not, why not?

Finally, since much of this argument goes far beyond a mere remedial program to an "equal results" program, I fully expect you to support "negative action" programs to reduce the enrollment of particuraly over-achieving minority groups.

Since so much of this argument is predicated on achieving equal results for blacks (and it is assumed that the only possible reason for differences is historic or current discrimination), we must, in the spirit of ensuring equal results, reduce Jewish and Asian enrollment.

I fully expect your endorsement.

# posted by

humblelawstudent : 1:41 PM

"Bart" DePalma:

[Arne]: Here's a question for you, "Bart": Two identical twins, raised identically. Who would have an easier time making a million bucks? One who started with nothing, or the other one whom you spotted a million bucks to, to start? If the first fails where the second succeeds, are you going to claim the first was "inferior" to the second?

That is a ridiculous comparison with education. No one is born in this world with an education. It appears from the brief that native Hawaiians go to the same schools as everyone else and are on average lagging academically and this is used as an argument to racially segregate them in a separate school.

Thanks for not answering the question. That does make for productive discussion.

"It appears from the brief that native Hawaiians go to the same schools as everyone else and are on average lagging academically and this is used as an argument to racially segregate them in a separate school."

As I pointed out previously, Head Start has been shown to make a difference in performance. Now Head Start is not "school". It's preparation for school that helps kids from being behind and falling behind when they get to school. Other factors that make a difference are home environment, resources, etc. If you come from a privileged environment, you're more likely to have had educational toys, reading materials, nay, even computers, possibly a nanny or tutoring, etc.

One of the problems with schools is that the poorer students tend to get less attention (and benefit) than do the better ones; just think about who gets called on ... the one with the hand waving, and just who's the one with the waving hand? And it's even more insidious; the rationale for single-sex schools is that boys tend to be more agressive ... and teachers have been shown to favour boys ... so that girls tend to be left behind or ignored even if they are similarly skilled. It's thought by some that if girls are not placed in "competition", they will get more attention and be better able to participate amd learn.

Mind you, I'm not in favour of single-sex (or single-race) schools; I tend to think that such problems might be better solved by treating the core issues. But to say that there's no point to such segregation is just wrong.

Back to the main point: If someone has all kinds of advantages outside school, why would one expect that such a person would perform similarly in an identical school situation? Kind of like asking two people how much money they're making when you spotted one of them a million bucks and they're raking in $50K in interest without lifting a finger.

Once again, thank you for avoiding the point. Let me know when you want to actually discuss the subject seriously.

Cheers,

# posted by

Arne Langsetmo : 4:01 PM

Someone:

Well, please explain then how the plantation system helped whites? Aside from the small minority of whites that owned plantations and owned the vast majority of slaves, most whites in the South (let alone the North) didn't own slaves.

Ummm, they got to go to school, perhaps?

Cheers,

# posted by

Arne Langsetmo : 4:03 PM

Someone, you're getting to the point where it takes books, not blog comments, to respond in detail.

Your claim that slavery (and later segregation) hurt whites is true in one sense and yet false in its most important sense. Yes, slavery did result in economic conditions which held back the development of the entire economy. Our whole economy suffered as a result. To that extent, whites were indeed harmed by slavery (and segregation).

But that isn't the issue here. The issue with AA is which class, white or black, was harmed more. To that question there can be only one answer. Blacks were denied education, they were denied jobs, they were denied government benefits, and they were denied civil rights. In every way they were artificially kept in poverty, while under a fair and free market they would not have been. Whites proportionately benefited -- directly in the case of government programs (e.g., the Homestead Act or the GI Bill), indirectly in the case of markets.

Your attempt to relieve those whites who came after the Civil War or lived in the North during segregation are not very persuasive. First, this simply ignores the extent of discrimination in the North. While never as destructive as in the South, it was real and very harmful. Second, it assumes that there was no national labor market in the US. That assumption was false even in 1860 and became more inaccurate as time went on. Restrictions on labor in Alabama thus interfered with job markets in Michigan.

The issue of recent black immigrants is one of those hypothetical claims that doesn't bother me much. It's an assertion which demands theoretical perfection in a program rather than practical benefit. The vast majority of blacks in this country were harmed by past practices. The fact that a percent or so were not is no reason to forego the attempted remedy. In any case, your suggestion assumes, wrongly, that racism no longer affects blacks (including recent immigrants). Given the combined effect of these circumstances, I see no reason to oppose AA.

Finally, no this is not an "equal results" program. It's an effort to ameliorate past wrongs. I do find it revealing, though, that you suggest some factor other than historical or current discrimination could cause the unequal results we see. What might that factor be?

# posted by

Mark Field : 4:24 PM

I meant to add that I find it remarkable that this country could operate for 350 years on the principle of affirmative action for whites, yet any hint of remedy for that legacy immediately results in blaming blacks for asking for more than they're entitled to. Irony must truly be dead.

# posted by

Mark Field : 4:34 PM

The problem with dismissing the problem of recent immigrants, black AND white, is that it requires dismissing a commitment to individualized guilt in favor of collective racial guilt. Otherwise you simply can't justify disadvantaging a recent immigrant white to help a recent immigrant black.

Do I really have to point out how dangerous it would be if the general population ever did come to accept collective racial guilt as a legitimate concept, given the enormously high black crime rate?

# posted by

Brett : 7:08 AM

Heck, you need a commitment to collective racial guilt even without the immigrants, to justify things like this.

The bottom line for me is, you don't end a feud by letting the losing side get in free shots for a while. You end it by stopping the shooting. You don't end discrimination by discriminating in the other direction until you think things are even. You end it by stopping discrimination.

350 years of history? Everybody's got history. Are those of us with Irish blood entitled to go after the British over the potato famine, just because British landlords were exporting food from the emerald isles during a famine?

Collective guilt is a poisonous concept, and it's rejection was absolutely key to the victory of the civil rights movement. Relegitimize it, and the gains of that movement will be lost.

# posted by

Brett : 7:40 AM

The problem with dismissing the problem of recent immigrants, black AND white, is that it requires dismissing a commitment to individualized guilt in favor of collective racial guilt.

I agree that this is a problem and I agree it can have bad consequences and need to be designed carefully for that reason. BUT, the problem was created in the first place by a policy of "collective guilt"; that's what racism is. This brings us back to my original point: AA programs must use race as a factor precisely because it was race which was the basis for the discrimination they attempt to remedy. Demanding only an individualized remedy is the same as foreclosing any remedy at all.

# posted by

Mark Field : 11:07 AM

"affirmative action for whites"

I think implicit in this phrase is a definition of affirmative action as "unearned advantage of one group vis-a-vis another". If one accepts this definition, then the most extensive AA educational "program" is the existence of affluence-dependent educational opportunity: community-based public schooling, private schooling, in home parental tutoring, paid tutoring, summer educational camps, SAT prep classes, et al. Like Mr. Field, I find it somewhat amusing, but mostly irritating, that while this massive inequity goes unaddressed, there are almost hysterical expressions of concern that some obscure school in Hawaii accords the native population advantages arguably "earned" by virtue of past disadvantage.

BTW, a policy on which I expressed no opinion in earlier comments (having none since it appears to involve technical legal issues of which I am totally ignorant) contrary to BdP's accusation "you apologists for government racial discrimination" - to which my only response is "QED".

-charles

# posted by

Charles T. Wolverton : 11:24 AM

Mark,

Yes, this debate easily takes on much broader issues that go far beyond our desire to discuss.

Well, here goes.

1. I readily agree that blacks were hurt more than whites. So, why instead of some overly simplistic whites helped/blacks hurt, a system that actually takes into account what really happanened? That the vast majority of benefits from slavery flowed, not to most whites, but a relatively small minority?

That said, why should the descendants of those who died fighting for the North continue to pay for the crimes of the very people they fought against to the very people they died to free? How about that irony?

2. Second, I'd reiterate Brett's good points. Moving beyond race, requires exactly that. While it does seem intuitive to suggest that race must be used to accomplish this goal, you haven't countered my arguments over why non-race based alternatives won't work.

3. The history of affirmative action programs around the world show that AA programs, while noble in ideal, are far from helping those who actually need it and largely help those who don't. For example, look at India and its AA programs for the untouchables--which largely helps those who don't need it, and doesn't help those who do, all the while increasing class tensions.

4. By refusing to acknowledge the real differences that existed about where a black was located, when the white came, etc. you throw under the rug some of the most important issues and lay bare the most objectionable qualities of your approach. It isn't an approach at justice. No one said getting to justice would be easy, but defining group benefits by race only encourages the very qualities that allow racism to exist.

5. I would love to hear from you when you think AA isn't needed anymore. How do you define it OTHER than when blacks are represented in univerisities, CEO's positions, etc. at a percentage approaching their percentage of the population.

6. By using race, the use of race will never end. Why should blacks or another minority ever want to get beyond race as long as they receive benefits on a racial basis-even if (when) racism is finally gone. This is important because there is no compelling reason for thinking it will ever end.

7. Do you deny that any other factor other than discrimination causes the differnences? I really hope not.

For example, the Jewish people have largely succeeded everywhere they have gone--much to the usual chagrin of local populations. The Jews have suffered throughout their entire history, and much, much worse fates that blacks, and yet, somehow they are remarkably successful. (Part of that success can be attributed to the fact that only Jews could loan money at interest because of restrictions on Catholics, but that only goes so far and for a limited time period.)

If the example of the Jewish people is any guide, then a minority's success should be directly proportional to the amount of discrimination suffered.

What it shows is that discrimination only plays a part in the success of a group. What is very important and largely left untouched because of PC concerns is culture.

Very interesting sociological work over the past 20 or so years has been conducted into the group attitudes in slave societies and their aftermath. Interestingly enough, it shows slavery profoundly affects each in different ways. One important constant is that as certain characteristics become associated with one group, the other sees that trait as a negative and through peer and sometimes coercive pressure discourages members of their own group from exhibiting those characteristics. For example, doing manual labor was considered "slave-like." And, attending school was considered "acting white."

Relatedly, the restrictions placed on the subservient group cause the group not to aspire to what was denied to them (on the whole). For some may want it even more because it is denied to them, on the whole, individuals don't pursue what isn't a realistic option for them. So, this forced self-selection is created and is passed down as a culturual attitude, even as the reasons for it begin to pass.

Now, I must stress several things. First, none of these attitudes are a function of race itself. Cultural attitudes of a group are PURELY social constructions. There is nothing within a racial group's genes that fundamentally prediposes them to one trait or another. Second, these are generalizations. So, obviously it does not hold for a particular individual of a group, the attitudes are (more) common to the group as a whole.

Interesting work along these lines has been done by the Thernstroms and sociologicals like Harrison and Huntington.

The legacy of slavery is only made complete when the damage done to a cultural is truly recognized. This only makes the legacy of slavery that much more horrible, but it lies to rest the overly simplistic notion that mere AA programs will actually help. Just look at the response to blacks like Thomas, Cosby and others when they dare attack the liberal dogma on race.

Helping individuals who need it is only way forward. Relying on race, will never get us passed it and doom us to an enternity of the dispursement of benefits on racial grounds. Once started it will never start. The true legacy of racism is that it started us down this path.

# posted by

humblelawstudent : 9:52 PM

The true legacy of racism is that it started us down this path.

Seems only right to start with an agreement. Well said.

So, why instead of some overly simplistic whites helped/blacks hurt, a system that actually takes into account what really happanened? That the vast majority of benefits from slavery flowed, not to most whites, but a relatively small minority?

I wouldn't dispute that slavery and segregation disproportionately benefited some classes of whites more than others. It was ever thus.

I understand that the result of racism was not equal for all whites. My point is that the opportunity remained for them purely because of their color. Indeed, by reducing competition for jobs, whites got opportunities they never would have had otherwise. EVERY class of white had at least the opportunity to attend better quality public schools, to attend universities, to become a doctor, to join the Army and receive government benefits from that, etc. Blacks were denied pretty much all these opportunities.

why should the descendants of those who died fighting for the North continue to pay for the crimes of the very people they fought against to the very people they died to free? How about that irony?

I'm actually a member of this class (my g'g'g'father didn't die in the war, but he served 4 years and was permanently disabled) and the irony doesn't bother me at all.

Moving beyond race, requires exactly that.

Don't you find it rather convenient that whites spent 350 years refusing to "move beyond" race because it benefited them, and now, when it is "moving beyond" that would benefit them, they're eager to do so? Isn't it whites who are the ones who should "move beyond" it by accepting some minor remedies?

The history of affirmative action programs around the world show that AA programs, while noble in ideal, are far from helping those who actually need it and largely help those who don't.

This gets back to my point above that pretty much every black person "needs" it in some sense. They had to run faster just to stay in place. That they get a reward for doing that doesn't bother me.

By refusing to acknowledge the real differences that existed about where a black was located, when the white came, etc. you throw under the rug some of the most important issues and lay bare the most objectionable qualities of your approach. It isn't an approach at justice.

I simply don't agree that these are anything more than theoretical examples. In practice, the vast majority of blacks and whites fall into the relevant categories. Besides, the test is not whether my proposal is perfect, it's whether my proposal is better than the alternative. Since the usual alternative is to tell blacks that we're sorry we never taught them to swim but we're sure they'll learn when we throw them in the pool, I continue to think my way is preferable.

I would love to hear from you when you think AA isn't needed anymore. How do you define it OTHER than when blacks are represented in univerisities, CEO's positions, etc. at a percentage approaching their percentage of the population.

I would guesstimate that 3 generations (say, 60 years) would be a minimum. That would take us to roughly 2030. I'd be willing to reassess it either way at any point.

By using race, the use of race will never end. Why should blacks or another minority ever want to get beyond race as long as they receive benefits on a racial basis-even if (when) racism is finally gone.

I think you are wrong about motivations. I don't think blacks are sitting there rubbing their hands with glee at the thought of affirmative action. They still have to work very hard to get into a position in which they qualify for jobs. That's motivation enough.

You're also leaving out the other half of this problem. Unless you think that racism has ended completely, we'll never get beyond it anyway. Again, that's something whites, not blacks, need to do.

Do you deny that any other factor other than discrimination causes the differnences? I really hope not.

What you describe as cultural factors all strike me as consequences of past discrimination. Thus, I think your arguments support my position rather than yours.

# posted by

Mark Field : 10:53 PM

"Don't you find it rather convenient that whites spent 350 years"

No, I find that nobody spent 350 years doing anything, because nobody's that old.

Mark, let's be clear about this: You are a racist. You, precisely, want people to be judged by the color of their skin, rather than the content of their character. You can't even be considered a "self-sacrificing" racist, because most of the people you want victimized on the basis of their skin color are not you.

And if you get your way, if you legitimize the idea that it's just to treat people according to the color of their skin, rather than their individual desert, the result will be terrifying. All the gains of the civil rights era are dependent exactly on people NOT thinking like you. And they CAN be lost.

Three generations more of white accepting being discriminated against, for something somebody else's long dead ancestors did. If that's what civil rights comes to mean, the nation will simply give up on civil rights. Because civil rights will have lost the moral high ground.

And, as I've pointed out, as a practical matter the consequences for blacks of the majority accepting this kind of racial guilt theory will be horrifying. Because the sins of whites are history, and the sins of blacks are fresh on the police blotter every day. And if I can be held to account for slavery and discrimination somebody else's grandfather committed, my pal Mike who helped me wire this house can be held to account for what gangbangers are doing today.

You want justice, and you've supplied a recipe for race war.

# posted by

Brett : 6:44 AM

Brett:

Mark, let's be clear about this: You are a racist. You, precisely, want people to be judged by the color of their skin, rather than the content of their character....

No. Mark's pointing out the fact that people were -- and are still -- judged on the colour of their skin. And he's pointing out that this practise did have and has consequences.

Mark would love nothing more than for people "to be judged by the color of their skin, rather than the content of their character", but we ain't there yet, and in fairness, we ought to work to alleviate the effects of the institutional ramifications of racism before we can say we're truly starting with a clean slate, even if we did manage right now, through some miracle, to eliminate the ugliness of racism from everyone's heart.

... You can't even be considered a "self-sacrificing" racist, because most of the people you want victimized on the basis of their skin color are not you.

Why do you claim this? I see no evidence to support such a claim.

And if you get your way, if you legitimize the idea that it's just to treat people according to the color of their skin, rather than their individual desert, the result will be terrifying....

... to some, perhaps.

... All the gains of the civil rights era are dependent exactly on people NOT thinking like you. And they CAN be lost.

Huh?

... Three generations more of white accepting being discriminated against, ...

Who's being "discriminated against"? You mean like the UT law school students that thought they deserved a place there? Hate to say it, but most of the people accepted there, while they were not, were white. Were these people discriminating against them too? If they wanted to get into law school, the solution is easy: Get better grades and score better on the LSATs, no? You say, well, it's hard for them to score better, but shouldn't they be let in anyways? Why?

... for something somebody else's long dead ancestors did. If that's what civil rights comes to mean, the nation will simply give up on civil rights. Because civil rights will have lost the moral high ground.

Huh? Why?

And, as I've pointed out, as a practical matter the consequences for blacks of the majority accepting this kind of racial guilt theory will be horrifying....

Not "racial guilt theory". Just facts of life.

... Because the sins of whites are history, and the sins of blacks are fresh on the police blotter every day....

Uhhhhh ... now who's the racist?!?!?

... And if I can be held to account for slavery and discrimination somebody else's grandfather committed, my pal Mike who helped me wire this house can be held to account for what gangbangers are doing today.

Your 'logic' has departed before you did.

You want justice, and you've supplied a recipe for race war.

I think we know where a "race war" will come from. We saw it the last time people tried to bring equality to blacks. Nathan Bedford Forrest had it down....

Cheers,

# posted by

Arne Langsetmo : 11:49 AM