Tuesday, February 28, 2012
Fisher v. University of Texas, Justice Kennedy, and the Text and History of the Fourteenth Amendment
Last week, the Supreme Court teed up yet another big constitutional showdown over the constitutionality of affirmative action programs by agreeing to review the decision of the Fifth Circuit in Fisher v. University of Texas, which held that the Equal Protection Clause of the Fourteenth Amendment permits the University of Texas at Austin to consider race as one of a multitude of factors in selecting a diverse student body. Fisher is largely an attempt to seek a do-over of the Court’s 2003 opinion in Grutter v. Bollinger, which upheld a similar policy adopted by the University of Michigan Law School by a 5-4 vote over the dissents of Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, and then-Chief Justice William Rehnquist.
"a host of other race-conscious legislation"
The report looks interesting.
Citing Reconstruction Era legislation is something of an easy case. But, let's take that.
Did that legislation benefit some black in NY who never was never a slave?
Ginni Thomas’s contempt for “élites” also mirrors a theme in Justice Thomas’s writings. Dissenting from Sandra Day O’Connor’s opinion upholding the affirmative-action program at the University of Michigan Law School, he wrote, “All the Law School cares about is its own image among know-it-all élites.”
Yes, as Joe notes, in the reconstruction era we were dealing with people who had, themselves, actually been enslaved. Today, affirmative action benefits people who, at most, had some ancestors who suffered the actual oppression, and frequently, as immigrants, have nothing in common with them except skin pigmentation.
What is racism, if not the conviction that race alone is enough to justify treating people differently? Today's affirmative action is nothing but a particularly self-righteous species of racism.
The idea that the oppression of African-Americans ended in 1865 is laughable and about as credible as denying the Holocaust. Even recent immigrants (Haitians in particular) have had to face tremendously stacked odds in the job market, as many studies have shown, due precisely to that insignificant difference in pigmentation.
Roberts is right about how to stop discrimination, perhaps, but it presupposes that everyone in the country is on board with the plan. "Wait and it'll get better" may be reassuring; it would be more reassuring if racism weren't still pervasive five generations later.
I have no doubt that there are blacks who have been subject to injustice; There are members of ALL races who've been subject to injustice. Some as a result of affirmative action itself!
The question here is whether you can justify using skin color as a proxy for having suffered injustice, or having benefited from it, not back during reconstruction, but today.
Because affirmative action programs do not set out to inquire as to who was subject to injustice, and just happen to benefit the usual suspects. They presume the usual suspects were subject to it, and proceed to benefit them on that basis.
And they do so by means of rigid quotas. Sure, this is obfuscated by use of "plus factors", but the "plus factors" as has been demonstrated repeatedly, are carefully calibrated on a continuous basis to yield compliance with the quota. They're not an alternative to a quota, they're how it's implemented.
Really, in the end it's true: The only way to stop discrimination on the basis of race, is to stop it.
The Big Lie on the right, which Brett propagates here, wittingly or no, is that "some" blacks suffered injustice. To a first order approximation, they all did (and to a lesser extent still do). For 350+ years they were deprived of all or most rights, including the supposed libertarian rights of owning property and making their own way in the world. As a result, blacks today are generally impoverished compared to their white "peers"; they lack the educational background and family wealth, whatever it may be, that whites have. This recycles the poverty and lack of opportunity even down to the most recent generation.
Irony is the wrong word to describe the racism of CJ Roberts, who piously tells us to "stop discriminating on the basis of race" after whites have benefited from doing exactly that for 350 years.
Brett seems as if he was inspired from reading (agape, no doubt) Pat Buchanan's new book. The only thing missing from Brett's comments is "Some of my best friends are ...." But note that Brett, in my view one of the "usual suspects" on racial issues as demonstrated by hatred of Pres. Obama in lockstep with our yodeler, twice refers to "usual suspects" in the middle paragraph of his second comment, perhaps his (and Pat's) new code words for minorities of color. Perhaps Brett, like Pat, thinks but for affirmative action he could-a-been President.
Mark responded quite well to Brett's "Big Lie" in disclosing racial history in America that Brett chooses to ignore because he personally was not involved with slavery and post-slavery. Yes, we had Brown v. Board of Education in 1954 when Brett was a youngster or not as yet born. But look at the battles that followed Brown by states rights and Southern Strategy (codes for segregation) before Brown seemed to be accepted, finally. And it took ONLY 55 years after Brown for the election of America's first African-American President. Yes, Brown has been accepted so direct challenges cannot be made, especially with the demographics that cause fear in Pat's distorted mind. So the challenge is made indirectly by the usual "usual suspects," not Brett's version, by challenging Pres. Obama at every step with vileness and hatred as Obama worked to have America climb out of the deep financial hole left by Bush/Cheney. Rick Santorum's recent reference to Obama: "What a snob" may serve as code for "uppity ...."
Brett, why don't you say what you really, really mean deep down?
Mark, I've got to break this to you:
There aren't any 350 year old blacks.
Aren't any 350 year old whites, either.
There are, OTOH, recent black immigrants who were never oppressed in the US.
So, yes, there are, as inconvenient as it might be, blacks who've been oppressed, and blacks who haven't been. Just as there are hispanics, whites, asians, who have and have not been oppressed.
But we don't go around trying to make it up to every Asian-American we see for the WWII internment, even the ones who just moved here last week. We DO when it comes to blacks. Why is that?
This whole appeal to events that happened 350 years ago, frequently to the ancestors of OTHER people, is inherently racist in nature. It's assigning group victimhood and group victimizer status on people based on skin pigmentation, and to hell with anybody's individual history.
So somebody black dude immigrates from another country, and a university snaps him up despite lousy academic qualifications, and gives the boot to the son of internment victims, because it helps them make their quota.
And you defend it because somebody else's ancestors were wronged 350 years ago.
O'Conner was right, the whole thing has a sell by date. The only thing she got wrong is that it has already passed.
By definition, you cannot advance equality of opportunity by discriminating on behalf of some and against others based upon skin color.
Tellingly, at my law school, none of those admitted based the pollicy of racial discrimination ever made law review or moot court, whose members were selected in an anonymous evaluation of their grades or writing. Weirdly, those who supported admissions by racial discrimination considered the latter result to be somehow discriminatory.
I expect Mark will respond directly to Brett's response to Mark's comment but I cannot let this portion of Brett's response pass without comment:
"And you defend it because somebody else's ancestors were wronged 350 years ago."
What Brett ignores is that this was a continuing wrong that even the Civil War Amendments could not correct with any immediacy, as segregation followed, blessed by the Supreme Court's Plessy v. Ferguson, which was not "undone" until 1954's Brown v. Board of Education. But the Brown re-correction was challenged with states rights and the Southern Strategy (see my earlier comment) even as the 1960s Civil Rights Acts were passed. And today, racial issues remain to be resolved.
No, the sell by date has not passed as yet with the ilk of Brett (and Pat Buchanan) pulling out old chestnuts to protect against the demographics. So I nominate Brett for the 2012 Rudyard Kipling Award not for the literary quality of Brett's comments but for the "Burden" he bears and bares disclosed in them.
Our yodeler chimes in with his law school anecdote on affirmative action. Presumably he was not a recipient of affirmative action, made law review and moot court, and got good grades comparative to such recipients. Perhaps our yodeler can inform us of the professional achievements of such recipients to compare with his professional success as the leading DUI attorney in his tiny mountain community in CO.
I don't give a damn about the demographics. If you commit wrongs to 'right' wrongs, there is never any end to wrongs. You just keep piling up new victims, creating new grudges.
You don't end a feud by evening up the score. You end it by ending it.
This is point we're never going to agree on: You think it's ok to vicitmize somebody today on the basis of their skin color, because somebody yesterday got victimized on the basis of their skin color.
I think that's the exact same offense. That your ilk have hunted dragons so long, you've become dragons, as Nietche put it.
"vicitmize somebody today on the basis of their skin color"
Blacks in particular continual to be victimized -- as they were in your lifetime, not "350 years ago" alone -- by society and the state in particular in various ways.
Centuries of slavery and illicit discrimination that didn't suddenly stop in 1865 or even 1965 takes a bit of time to fix.
When a complete effort is in place to stop such discrimination, which provides (as it always did) a benefit to the not negatively affected group, limited means (I'd rather much more myself, but those against it rarely are willing to put in the effort) to deal with the situation (means like all medicine to deal with cancers, never painless) can be stopped.
And, the diversity benefit continues to have some bite. Regardless, Justice Kennedy disagrees with Brett. He supports race conscious methods to deal with race conscious problems. He does not support certain specific methods, but he didn't go along with Roberts in Parents Involved as to ALL race conscious methods.
And, yes, if providing a limited benefits via a points system is considered the "same offense" as suffered by those helped -- the lingering effects of slavery and discrimination hurting newly arrived blacks too -- there is a major bridge to be traveled.
Linda Brown being kept from school is not the "same offense" as Ms. Fisher barely not getting a preferred spot after not quite meeting the guaranteed 10% slots open under a race conscious plan.
I don't think references to Reconstruction will carry the day here (I'm no originalist anyway) but it's a tad notable that back then helping newly freed slaves was deemed racist too. Then, dealing with discrimination in public accommodations was deemed asking too much. Then, in Plessy, any racist intent was said to be in the mind of the blacks.
The feeling of victimization continues. Any "offense" felt, however, is not "the same."
Actually, there is almost no corration between grades based upon issue spotting in legal theory classes and success in litigation practice in the real world.
FWIW, I chose to forego the grind of large firm practice for the less lucrative, but far more edifying, solo general practice in my little slice of paradise in the Rocky Mountains. I feel sorry for those who sacrifice life for the "success" of big firm practice.
In addition to what Joe and Shag said, Brett's response completely missed the point. You don't need to have been a slave to be a victim of slavery. Children born after the Civil War to freed parents were also victims. Why? Because their parents never had the chance to gain an education or earn wealth to give those children the opportunity to compete equally with the whites who had gained these advantages (at the expense of blacks, mind you).
Because we never tried to compensate the freed slaves for the wrong done to them -- indeed, we continued those wrongs for over 100 years thereafter -- there never has been a point in time where blacks could be seen as having an equal start in life.
I'm surprised to see Brett bring out the old racist line about recent immigrants. I don't think Brett's a racist, but that argument is a common diversion by those who are. Here's a concept: Who cares? The number of recent immigrants is trivial compared the number of those whose ancestors suffered under affirmative action for whites. Public policy is never about perfect justice, it's about justice in general. Pointing to recent immigrants is bad faith, and that's putting aside the fact that prejudice and discrimination still exist in this country.
Today, affirmative action benefits people who, at most, had some ancestors who suffered the actual oppression
Spoken like a guy who has never experienced any of this himself.
It's so easy to say these things when you haven't.
Yes duh it still happens today.
I have no way of knowing whether our yodeler would - could - have been a success in a big firm practice. I was not in a big firm practice (there weren't that many around like current big firm models back in 1954) but enjoyed being a "country lawyer" in small firm/solo arrangements for over 50 years, with a general practice including tax/business/corporate law representing people in both individual and corporate form that was quite edifying as well a lucrative enough. While Boston may not be a mountain paradise, it has a great history (some not so great), diversity, educational institutions and major sports teams, including enough old Greeks to remind us of the Athens of America. But I don't understand how edifying a legal career boasting of expertise in DUI can be. I wonder if this was our yodeler's goal in law school. As for his affirmative action classmates, perhaps their goals were loftier that a DUI high, such as civil rights.
I cannot tell you how shot down I feel having an attorney specializing in tax avoidance denigrate the third of my practice dedicated to criminal defense, the noblest of callings for a trial attorney.
BTW, my first job out of law school was defending the Florida university system from BS civil rights claims, also a noble calling.
Who cares? Anybody who thinks people are individuals, entitled to be treated as such, rather than as interchangeable instances of a race. That's who cares. Anybody who's not a racist cares.
Look, let us suppose that we get wind of the fact that, somewhere, some black guy robbed some white woman of $100. So we go out, find a random black man, take $100 from him, and give it to a random white woman.
Is are you ok with this? Because it bears exactly the same relationship to actual, real justice, as affirmative action does.
Again, it's so easy to talk of how it's about individuals if you've never been treated a certain way because of a group you were born in
Our legal system is not based upon the revenge proposition of an eye for an eye or, in this case, present racial discrimination to make up for past alleged discrimination.
I wonder if MADD in CO believes that the "successful" techniques in defending DUI defendants constitutes "... the noblest of callings for a trial attorney." I recall our yodeler bragging several years ago about becoming the leading DUI attorney "in his little slice of paradise." From what I understand, most DUI cases are plea bargained from the git-go.
I'm sure our yodeler is aware of the distinction between tax avoidance and tax evasion. Consider this:
"Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one's taxes. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands: Taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant."
- Honorable Learned Hand, U.S. Appeals Court Judge, Helvering v. Gregory, 69 F.2d 809 (1934).
As to our yodeler's first case as a "noble calling," perhaps a cite might be helpful in determining how noble it actually was.
"entitled to be treated as such, rather than as interchangeable instances of a race"
The student, Ms. Fisher or someone else, is being treated as an individual here. Various aspects of their person, experiences and so forth are judged in the process.
Noting someone is a woman, e.g., doesn't mean she's fungible with every other woman.
Note our yodeler's:
"Our legal system is not based upon the revenge proposition of an eye for an eye or, in this case, present racial discrimination to make up for past alleged discrimination."
phrasing "past alleged discrimination" that seems to totally ignore an extensive history of actual discrimination whereas his phrasing of "present racial discrimination" avoids use of "alleged."
Because there is no evidence that every member or even most members of any racial group has suffered discrimination which has harmed their academic ability, the existence of such discrimination for any individual in that group is alleged.
To state that somebody is alleged to be a Holocaust survivor is not to express doubt that there was a Holocaust, but merely that somebody was involved in it.
Really, this relentless determination to admit that individuals have histories distinct from some statistical average of the group they're assigned to is tiresome. If affirmative action were about histories of oppression, those administering them would have to inquire into the histories of the individuals in question. And they'd find that many blacks do not have such histories, many non-blacks do.
But that violates the stereotype, and is thus inadmissible. Right?
Brett's focus on the circumstances of every single individual is an argument against passing laws at all. Every law can lead to injustice in particular cases.
What makes his argument even worse is that it was precisely the failure to treat blacks as individuals that was (and still is) America's great sin.
Which you propose to expiate by extending it to everybody? Because blacks once weren't treated as individuals, nobody can be so treated today?
Because blacks once weren't treated as individuals, nobody can be so treated today?
They are being treated as individuals. The students are judged individually. Various classifications are used here (including academic merit) in the process.
As Mark Field notes, this is what law is about. So, only those over 18 can vote. Even the most intelligent seventeen year old is not merely treated as an "individual" in a specific way.
But, in loads of other ways, they are. As are the students and others under AA programs.
Our yodeler responds on his selective use of "alleged" with this:
"Because there is no evidence that every member or even most members of any racial group has suffered discrimination which has harmed their academic ability, the existence of such discrimination for any individual in that group is alleged."
which suggests that he be sent back to the woodpile of yahoos to reread Brown v. Board of Education, a decision that our yodeler once praised in this Blog as the greatest Supreme Court decision of the 20th century. But note that with this weak response, he neglects to address his absence of the use of "alleged" with respect to the "present racial discrimination" of Ms. Fisher as if that is a fact.
It should also be noted that our yodeler seems reluctant to provide a cite (or cites) for his earlier self-described "noble calling":
"... my first job out of law school was defending the Florida university system from BS civil rights claims, also a noble calling."
One would think he would have the info at the ready demonstrating that the Florida university system engaged him fresh out of law school (where his record must have been quite impressive) to handle the defense of such claims for the entire Florida university system - unless there is a tad of puffery involved. (I assume that our yodeler's use of "BS" in his assertion means the same as the BS he spouts at this Blog.)
Brett's process of saying what he really, really means deep down on affirmative action suggests he might be reading James Dickey's "Deliverance" for its red meat, redneck inspirations. Can one really, really believe his:
"I don't give a damn about the demographics."
Obviously he fears equal opportunity, fairness and justice, perhaps assuming that a new majority of color may look back at history of how the old majority of whiteness (however defined) treated them.
I fear equal opportunity, fairness, and justice, because I insist that people be treated as individuals based on their personal merits and history, and not just have a history assigned them based on their skin color?
You're not just going all Humpty Dumpty on me here, you're a spendthrift, too.
From what I understand, nobody pushed Humpty Dumpty off that wall. And just who is trying to put Brett back together again? He's stuck with that egg on his face, metaphorically speaking (if you get the "yolk"). In bringing up Humpty Dumpty, and looking at Brett's photo accompanying his comments, one might see some resemblance picturing him on a wall.
But to be called a "spendthrift" hurts to the quick, so much sharper than a serpent's tooth, as I rely upon my Social Security direct deposit tomorrow plus Medicare for my survival. Maybe Brett is of the fortunate 1% or 0.1% who has pulled himself up by his own bootstraps, with no outside help, making claim in effect as a pure libertarian. Perhaps Brett thinks he got to third base on his own rather than being born there; but I imagine him trying to steal second base for the good old days when baseball and life were purer.
Hey Brett, read this part from the post again: "The policy emerged after many years of effort by the Texas legislature and the University to increase classroom diversity, break down stereotypes, and increase pathways to leadership for all persons at the state’s flagship public university. UT Austin adopted this review process in 2004, after undertaking a study of campus life and finding significant racial isolation and racial tensions on campus. The University found that the State’s Top Ten Percent law – enacted by the legislature in 1997 when African American enrollment was at an extreme low of 2.7% – had improved the enrollment of minority students at UT Austin by guaranteeing admission to any Texas resident graduating in the top ten percent of his or her high school class, but that racial isolation remained a serious problem on campus. "
Sadly, every argument you have made ignores the actual facts of the case. What is the cause of this blindness? Because it must be a conscious decision on your part.
I fear equal opportunity, fairness, and justice, because I insist that people be treated as individuals based on their personal merits and history, and not just have a history assigned them based on their skin color?
Of course, you get the benefits of those 350+ years of people NOT being treated as individuals, while blacks have to bear the burden of them. What's the saying? Born on third base and brags that he hit a triple?
"while blacks have to bear the burden of them."
Is the word "some" inexplicably missing from your vocabulary? Or are you just ideologically committed to refusing to admit that people aren't all just instances of their class?
I insist that people be treated as individuals based on their personal merits and history, and not just have a history assigned them based on their skin color?
People are being treated as individuals. By merit and history.
History is not being "assigned" on them. Mark Field is stating history.
If some rather not accept it, including the effects that continue, effects that didn't just happen "350 years" ago, that's another issue.
And, while discussing said history who here is "just" judging them based on their skin color? Skin color was and continues to be - like sex, age, sexual orientation, religion etc. - an important factor.
Maybe the solution is some kind of self-reporting for discrimination in the tax forms. Racists can list the people they've discriminated against on the basis of race, including their full names, SSN, and estimated amount of damages. The victims then can file a schedule that lists all of the people that discriminated against them (again with full names, SSN, and estimated amount of damages). Obviously, the two amounts must be negotiated some way, possibly through a clever mediation chart or third-party adjudication. Once a figure is agreed upon, the amount can be used as the basis for some sort of tax credit or automatic career placement waiver.
That should work fine, right?
Joe, if an affirmative action program treats both a black ghetto occupant, and a recent black emigre (trivial number indeed!) from, say, Kenya, as "having been subject to 350 years of discrimination", yes, it's assigning a history to them in place of their actual histories.
You know what? History is made up of sunk costs, injustices which will never be remedied because remedying them would require fresh injustices. There's scarcely a person walking this Earth whose life wasn't shaped in some way by past injustice.
We will never erase that history of injustice. All we can aspire to is to not create new injustices. That's where affirmative action fails abysmally.
Brett attempts to wax philosophical following his lame anecdotalal set up with this:
"You know what? History is made up of sunk costs, injustices which will never be remedied because remedying them would require fresh injustices. There's scarcely a person walking this Earth whose life wasn't shaped in some way by past injustice.
"We will never erase that history of injustice. All we can aspire to is to not create new injustices. That's where affirmative action fails abysmally."
fails for so many reasons. Perhaps Brett is that scarce person "whose life wasn't shaped in some way by past injustice." If he is not that scarce person, perhaps he could enumerate past injustices that he has suffered to better weigh his comments on this thread.
Brett's philosophy suggests that if one suffers an injustice, then one should turn the other check, back and forth, perhaps for centuries. Perhaps in Brett's view it would have been better if slavery remained in force even though I think he would concede (or would he?) that the slave suffered injustice. Perhaps Brett believes that following emancipation, the Civil War and the 13-14-15th Amendments, while providing some justice to the former slave also resulted in injustice for the former slave master and other white beneficiaries of slavery. Perhaps in Brett's view, Pressy v. Ferguson was properly decided, for if Plessy had prevailed and received justice, then this would have resulted in an injustice to train passengers who could no longer segregate Plessy and others of color from the train cars they would ride. So perhaps in Brett's view the Supreme Court's decision in Plessy served to prevent a fresh injustice that justice would have created.
So let's jump ahead to 1954 (from 1896) during which time injustices were suffered by African-Americans with the Plessy doctrine of separate but equal. Perhaps Brett's philosophy would suggest that Brown v. Board of Education should not have in effect overruled Plessy since the long denied justice to African-Americans would only result in injustice to those who challenged Brown, its progeny cases and the 1960 Civil Rights Laws under the guise of states rights.
Apparently Brett's philosophy looks upon justice as a zero sum game such that providing justice only results in fresh injustice, so why provide justice? Brett likes the status quo, but not of the present, rather he prefers the status quo of sometime in the past when it was okay to provide injustice to a large group of African-Americans (per the one-drop rule) because rectifying that injustice would only result in fresh injustice to those who had been benefited by their imposed injustices on African-Americans for centuries.
Instead of waxing philosophical, I suggest Brett wax his pate, sit on a wall, ....
Justice isn't a zero sum game, but affirmative action ain't justice. It's just a simulation of justice by people who fundamentally don't grasp the concept.
I've got a suggestion for what Brett can grasp.
This post and Fisher has involved quite a bit of my time and most likely will continue to do so. For at Larry Solum's Legal Theory Blog a link is provided to Nancy Leong's recent article "Racial Capitalism" that runs 86 pages. The abstract suggests her subject " ... is particularly timely given the Supreme Court's recent grant of certiorari in Fisher v. University of Texas." Solum gave it a "Recommended!"
I am not suggesting that Brett read this article as he may not be willing to grasp it but I'm sure it will take up a significant portion of my weekend as it has moved to the top of my pile.
I note that Brett did not take the bait i put out on whether he is that "scarce person ..." that has not suffered past injustice. But let's take a look at what he did respond to:
"Justice isn't a zero sum game, but affirmative action ain't justice. It's just a simulation of justice by people who fundamentally don't grasp the concept."
For consistency, then, Brett might "concede" that the 13-14-15th Amendments were similarly "just a simulation of Justice" for African-Americans going over the history of events that followed. Clearly Brett has a fundamentalist (status quo) view of affirmative action. But perhaps Ms. Fisher suffers from a simulation of injustice that she might not have suffered but for Brown v. Board of Education that started the upset of the status quo that Brett seems to desire.
Brett, the black emigre and ghetto occupant is not treated the same way in all particulars.
In various ways, they will be treated differently. On the other hand, like a rich and poor woman are both women, affected by history and culture, 350 years of history has affected both in certain ways. Rich and poor, they can be racially profiled. etc.
Generalized statements like all problems can't be fixed don't help much. That can be said about any number of things. Some things can be addressed in certain ways.
Any solution won't be perfect, the alternatives leave a lot to be desired too. If you continuously ignore things like the fact the students here are treated as individuals, it also is hard to actually properly judge the successes (as there has been) and failures.
"On the other hand, like a rich and poor woman are both women, affected by history and culture, 350 years of history has affected both in certain ways."
How the hell can "350 years of history" effect people whose history is in different countries the same? Somebody immigrates from Sengal to go to college in the US, they've got 350 years of Sengalese history behind them, not US history!
The only thing in the US that can effect them is present circumstances, not "history". And the present circumstance is that blacks aren't discriminated against in colleges, they're receiving huge racial preferences.
You use words like "history", but you're just reciting the party line, not thinking about what the words actually mean.
Maybe Brett could learn a little history here in the U.S. of A. by listening to Louis Armstrong's rendition of:
"(What Did I Do To Be So) Black and Blue"
reflecting 350 years instead of his lame Senegal anecdotal "current history." To use a baseball metaphor, Brett is taking too many "Ks" at bat that may serve as his identification.
"in different countries the same"
They are not in "different countries" in this scenario. They are both in the U.S.
I did not say they were treated "the same." I said they were affected in "certain ways" partially on account of their race. You quote me and then don't actually address what I say.
As to "history," it is not a "party line" to note that centuries of slavery and discrimination that lingers on to this day, the last vestiges of legal segregation alone felt by the parents of today's students, has a strong effect on current realities. This isn't a "racial" thing. It is how life actually works in general.
The "huge" benefit here is that those slots not take by top 10% of schools get a few more points to get a limited number of slots. INDIVIDUALLY each student's records are weighed, any number of things factored in, not just race.
This doesn't help any number of blacks, including those who have poor academic records or some other difficulty. AA is in fact a rather limited means to deal with structural defects, but our ultimately conservative system does not support comprehensive solutions.
Meanwhile, blacks, even if you wish not to notice it, continue to be discriminated against and their families have less resources in part because of the weight of history. This along with diversity is one reason it makes sense to take into consideration, along with various other things, race when INDIVIDUALIZED student selection processes take place.
I'll leave it there. The thing that troubles me the most is not opposition to the means here. I can understand that. It is the inability to even admit to the problem being addressed and the misstatement of the nature of the solution.
It is truly a matter of different wavelengths and the aggravation on both sides is therefore understandable.
I should have posted this earlier, but you can read about the historical roots of inequality at http://www.voxeu.org/index.php?q=node/5788
We need to give in and get on board the gravy train.
I demand compensation for all my Irish and Italian ancestors for discrimination by the WASP establishment and for all the times they were called Micks and Wops.
That would be 7 generations of Irish at 50% of my ethnic heritage and 4 generations of Italians at 12.5% of my heritage.
My Scots and French ancestors are probably break-even in the discrimination scale because the WASPs had the Micks and Wops to pick on.
I am socially traumatized by all this prior discrimination and currently seeing Italians portrayed as gangsters on the newly digitized Godfather movies and the Irish portrayed as brawling drunks on Celtics jerseys.
My bill to all the rest of you is $1,536,345.35 at Colorado statutory interest of 12% per year. I also want written apologies posted on this thread for all the oppression you have heaped on my ancestors.
Shag owes extra since he obviously bears ethnic animus towards me.
Our yodeler is either on 'rhoids or suffers from 'rhoids; or perhaps it's from years of inhaling second-hand DUI fumes.
Let's await Brett's bill for analysis purposes.
Query whether our yodeler has included his complete forbears' ethnicities? I recall a few years ago a claim by him of some Native American blood coursing through his veins.
"This along with diversity is one reason it makes sense to take into consideration, along with various other things, race when INDIVIDUALIZED student selection processes take place."
Obviously, I don't think "diversity" is an adequate excuse to deny people equal treatment under the law. Further, adopting it as a goal represents the 'civil rights' community's formal renunciation of ever judging people according to the content of their character, not the color of their skin; It's an excuse to judge people according to the color of their skin in perpetuity.
But, finally, discovery in cases where AA has been challenged in court has demonstrated that, where it's implemented, it's not just another factor that's taken into consideration, it ends up weighted to the point of being practically the whole ball of wax, in order to meet the quota.
Every single other criteria for admission combined did not carry as much weight as race. That's how these 'diversity' programs are implemented in real life.
Apparently Brett believes that:
" ... judging people according to the content of their character, not the color of their skin ... "
is important as a criterion. Look through the lens of slavery, the Civil War, the 13-14-15th Amendments, Plessy v. Ferguson, Jim Crow, segregation, Brown v. Board of Education, the 1960s Civil Rights act and apply this criterion. But for Brett, that's in the past and attempts to seek justice now will only create injustice for those who were not, either directly or through several generations of their ancestry, judged by the color of their skin and benefited regardless of their content - or lack - of character.
Regarding diversity, it should be kept in mind that it is less than remediation.
Brett found an article that matches his sentiments. I thought only Shag selectively provided law articles.
Diversity is promoted in various places and Brett's assumptions aside, it is not mutually exclusive to equality. Per Shag, yes, it is not the only thing we should worry about. It is one thing.
Any system used is imperfect. The alternatives to AA often leave something to be desired. The Texas 10% plan (which still bothers people -- see Volokh Conspiracy) looks useful.
I don't think that Thurgood Marshall et. al. renounced the dream of Martin Luther King Jr., though a "dream" of an ideal future is not the same with dealing with an imperfect present.
Yup, that's right: The past is sunk costs. Our obligation, as people who live now, not in the past, is to refrain ourselves from adding to that list of injustices. Not to embark on a quixotic crusade to undo all the evils of the past, even if it means we have to commit new evils today.
My 3 year old son is napping in the other room. His father is the son of a modestly well off machinist. His mother the daughter of a poor tenant farmer in a third world country. He himself has wronged nobody.
And you'd present him with the bill for 350 years of injustice he didn't commit.
To hell with that, and all your rationalizations for enshrining racial discrimination as a permanent feature of our society.
"To hell with that, and all your rationalizations for enshrining racial discrimination as a permanent feature of our society."
attitude might just result in such a permanent feature or, if there were enough of his ilk despite the approaching change in demographics, resegregation as policy.
Brett uses the coward's tack of making this personal with his expressed concern for his son. Perhaps Brett will foist his personal views on racial issues upon his 3-year son, which may not serve his son well in the long run.
I don't have racial guilt, collective or otherwise. Rather I have a sense of justice. I hope I have not wronged anyone that bears the scars of 350 years; but I have benefited from not having had to walk in their shoes.
ionginkNow that this discussion has reached its inevitable conclusion (or does someone want to top Mark's accusation that Brett is "eagerly living off the blood of millions"), may I suggest a new topic?
Tomorrow Holder is apparently going to explain Marty Lederman's reasons for why it is legal for the president to order the killing of American citizens, but only when it is really, really important. This in no way is to be confused with ordering the torture of foreigners who run international terrorist organizations, which is always illegal, regardless of the circumstances.
Discuss- as always, there will be bonus points for personal invective and irrelevant name-calling.
I wouldn't attempt to top Mr. Field, but I will point out that conservatives like Brett seem to be amazing magicians with the ability to transform privilege into victimhood at the drop of a (rabbit-filled?) hat.
If you have an Anglo name on your resume and a person with identical qualifications has a name that sounds "ethnic," the Anglo name gets the callback more often than the other. That's a privilege that one receives without ever noticing it.
Brett brought his 3-year old son and family into this discussion. I wonder if Brett will tell his son as he grows older about Homer Plessy and how Plessy v. Ferguson (1896) might have impacted Brett's son in some southern states but for Brown v. Board of Education (1954). I wonder if Brett will tell his son as he grows older that but for Loving v. Virginia (1967) the marriage of his parents might have been illegal in some southern states. I wonder if Brett will tell his son of the Civil Rights Acts of the 1960s that serve to protect his family in interstate travel by not being denied certain basic accommodations. I wonder ....
Joe pointed out Brett's link to a law review article, "Hopwood and its Consequences" by Michael S. Greve, published in the Pace Law Review in 1996. I have only glanced at the article, which starts:
"The Fifth Circuit's March 1996 decision that the University of Texas Law School may not use race as a factor in student admissions sent shockwaves through the world of higher education."
Footnote 1 includes: " ... Linda Ponce Campbell, UT Law School Case Fuels Affirmative Action Opposition, FORT WORTH STAR-TELEGRAM, March 24, 1996, at 5, available in 1996 WL 5529109 (Sanford Levinson, University of Texas Law School, calling Fifth Circuit's decision "a full-scale declaration of war"); ...."
Maybe in due course we'll hear from Sandy on Fisher.
Sorry, Shag, Victor doesn't start American history until next year, we're still trying to get him to move on from his tattered copy of Pinocchio to something more advanced, like Treasure Island. (And trying to get him to leave my Nook alone! I might have to get him his own for his 4th birthday.)
My point in linking to that article was to get you to look at the charts: Defenders of AA talk about race being a "plus factor", but an examination of actual admissions records pried out of the University during discovery revealed that it's a factor which trumps all others.
It's literally the case that the qualifications which got you automatically admitted as a black overlapped the (Lack of) qualifications which got you automatically rejected if you were white. Every other factor they considered was rendered insignificant if you had the right pigmentation.
Yes, they were evaluating the applicants as individuals. Evaluating their skin pigmentation...
Brett's three year old son could have lived in 1875 and "hurt no one" but dealing with that "present" properly involved dealing with the "history" of slavery, even if it was officially ended in 1865.
Maybe such missing the point is why Mark Field is so aggravated. Hey, I know the feeling. Someone misses the point and well you get pissed off at them. Then, someone like mls comes in and tries to pick a new fight.
Then, you watch the Mets. Seriously, this thread has run its course.
This may be considered by some as snark, but I can picture Brett in the role of Pinocchio.
As for Treasure Island, here's a quote from RLS's book:
"It was just at sundown when we cast anchor in a most beautiful land-locked gulf, and were immediately surrounded by shore boats full of Negroes and Mexican Indians and half-bloods selling fruits and vegetables and offering to dive for bits of money. The sight of so many good-humoured faces (especially the blacks), the taste of the tropical fruits, and above all the lights that began to shine in the town made a most charming contrast to our dark and bloody sojourn on the island; and the doctor and the squire, taking me along with them, went ashore to pass the early part of the night. Here they met the captain of an English man-of-war, fell in talk with him, went on board his ship, and, in short, had so agreeable a time that day was breaking when we came alongside the Hispaniola." (34.20)
that Brett might mull over.
"Maybe such missing the point is why Mark Field is so aggravated. Hey, I know the feeling. Someone misses the point and well you get pissed off at them. Then, someone like mls comes in and tries to pick a new fight."
Mark is no less, and no more, missing the point, than I am. We disagree as to what the point is. I know what his point is, I am expressing violent disagreement with it.
And, Shag, you want me to teach my son about this country's shameful history of racism, or spare him any exposure to it? Make up your mind.
Disagreement is there but I already cited somewhere where even when you quoted me, you missed what I was saying, responding to something I did not say. Disagreement tends to include talking past each other and not fully taking into consideration just what the other person is saying.
Brett, I would never suggest to you how you should raise Victor. I shall only say that Treasure Island just may have too much violence for a 4-year old. But as he gets older, you might consider Howard Zinn's "A People's History of the United States" to explain to him about slavery, racism, etc, after first reading it yourself.
I finally finished this morning reading the "Racial Capitalism" article I referenced in an earlier comment. While the article was well prepared, it is difficult summarizing it. Perhaps with some further thought, I might be able to at least explain the concerns the author has with the effect of commodification of race upon non-whites who do get into diversity programs, whether in education, employment or socially. For the time being, let me pass on this from the article on discourse about race:
"We struggle to have good conversations about race. Commentators have examined this difficulty, both within and outside the academy. The news is full of conversations gone bad, and sometimes it seems like every internet thread involving race eventually degenerates into epithets and slurs. Not long ago President Barack Obama called on Americans to have a conversation about race - and some groups responded - but it is hard to say whether this symbolic pronouncement and the response to it has advanced our national discourse." (pp 72-3)
I share in the blame. There are no easy solutions to addressing the remnants of racism but they must be addressed.
The first step toward recovery is admitting you have a problem. Conversations that ignore, deny, or trivialize past and present racism, are conversations that will likely not move us one inch toward a truly color blind society.
In 1992 the Rodney King riots occasioned some commentary by Elvis Mitchell. He pointed out that white America still had no idea the advantages that still come from just being white, had no idea what it was like to be black in the land of Darryl Gates' police force, which was why white America didn't get black rage over the verdict. It was at that point I reflected on my first job.
It was a systems engineering position that I was, let us say, minimally qualified for. But I did know the hiring manager. No, that's not a crime. And yes, I did work out. But: would a black candidate with the exact same underwhelming qualifications have gotten the job?
Well, I knew the hiring manager through my school. He was white, I was white, and the school was over 99% white at the time. Would a black candidate have known the hiring manager? Uh...probably not. So a black with the same minimal qualifications would have gone through the standard HR process, his resume would not have made it to the hiring manager, he would not have gotten the chance I got.
And: that job launched my career. Starting from the same qualifications, a black candidate probably wouldn't have had that launching point. His career would have had to start later or never. When I was moving to my next position, he might have been still pushing to get a break into systems. Or giving up and accepting a series of low-paying jobs he was overqualified for. Or eventually finding another break but years behind me, with correspondingly less relevant job experience.
Very few of us could look back at our entire lifetime of opportunities, and say that every single one of those opportunities were equally available to people of color. Probably not.
And look how self perpetuating it is: my better job and career, my safer neighborhood, my kids, the better schools they get into, the whiteness of those schools, the job opportunities at the school.
To deny this is to ignore reality. The reality is, racism still exists in America. It's not virulent, pervasive, racism any more, thank God. But there are still all these ways, small and not so small, that the color of your skin still matters in America. To talk as if this were not true, not any more, that's some way back past alleged thing there, is denial, and it's talk that's not going to move us forward.
Is Affirmative Action the solution? Guess what; there are no easy, simple, answers.
But denial gets us nowhere.
Jpk, undoubtedly racism still exists in America, and we get nowhere by ignoring it.
We get worse than nowhere by practicing it.
Ultimately you either believe in collective guilt, or you believe individuals are entitled to be treated as individuals. If the former, affirmative action makes sense. Problem is, it's the same perspective from which riding out to lynch a random black when you heard of a black committing a crime made sense, too. If whites are guilty of whatever whites did, regardless of what they personally did, so are blacks...
Most Americans are firmly in the camp which rejects the notion of collective racial guilt, and think people deserve to be treated as individuals on their own merits. So the days of affirmative action are numbered, and not O'Connor's quarter century, either.
Slavery was a "collective" sin but the country managed to pass the 13-15A which treats "individuals."
As to what "most" want, affirmative action plans have been repeatedly and continuously passed by majority will, including leaving schools the discretion to have them.
The courts, rightly or wrongly, struck many down, but "most" continue to give the government the power. Brett can't have it both ways there. Again, Justice Kennedy supports race conscious programs. Brett might not like his vote here or in Heller, but it is a better bellwether at majoritarian will than him on this point.
Society might be wary about Mark Field's sentiments but the military, schools, local majorities and six justices on the USSC disagrees with Brett's bottom line, including how much "history" lingers today.
I should have said "at least five."
I don't think one or more others would fully support his whole sentiment as to "history," even if there would be agreement as to means.
As to mls, I do wish someone with comments open would talk about Holder, though this is not the place to do it. Lawfare, though no comments, had some interesting thoughts on it.
Slavery was a "collective" sin but the country managed to pass the 13-15A which treats "individuals."
As was Jim Crow (in all of its manifestations), not merely in the implementation of it but more importantly in distributing the benefits. Insisting on individual remedies for a collective sin is cute way of assuring no remedy at all.
Even today, individual black people aren't discriminated against; the discrimination is against blacks per se. That the victim happens to A rather than B is fortuitous. It's inherently a collective problem.
"As was Jim Crow (in all of its manifestations), not merely in the implementation of it but more importantly in distributing the benefits. Insisting on individual remedies for a collective sin is cute way of assuring no remedy at all."
As guilt and innocence are unavoidably individual matters, dismissing the need to actually establish that, yes, this person benefited, or no, that person just emigrated last week from Sweden, demonstrates either a belief in collective guilt not just as a matter of contingent fact, but principle, or a simple disinterest in whether the people you'd disadvantage today are guilty. Either is offensive.
Your sort of thinking would have put Julian Bilecki in Spandau.
As for the democratic nature of affirmative action, poll after poll after poll has demonstrated that the American people approve of AA so long as it's sold as outreach, going to extra trouble to find qualified candidates. But they also show that support evaporates the moment they find that it's revealed to involve discriminatory treatment of candidates once found.
That's why, you know, you have to get ballot referenda like that one in Michigan overturned in the courts. Because the public isn't on your side, only some judges.
"As for the democratic nature of affirmative action, poll after poll after poll has demonstrated that the American people approve of AA so long as it's sold as outreach, going to extra trouble to find qualified candidates. But they also show that support evaporates the moment they find that it's revealed to involve discriminatory treatment of candidates once found."
does not indicate who were polled after polled after polled: whites, non-whites, others? Regarding "qualified candidates," is it clear that all whites enrolled in higher education are "qualified candidates" or is that an issue only for non-whites? As for Brett's second sentence, does he mean discriminatory treatment of whites or non-whites? I.e., is Brett suggesting that non-white candidates once found receive discriminatory treatment? The latter question is addressed in "Racial Capitalism."
I think Brett has made clear his view that AA should be eliminated and in effect leave it to be addressed as demographics change by voters then in the majority, which Brett seems to believe appropriate presently.
I think the truth is somewhere in between MF and Brett, but my point there is even if we assume pure individual reach of those amendments, the cause was not merely individual.
Brett says guilt is individual but we aren't talking a single crime or incident here but something that society as a whole authorized and let go on. This is not a "disinterested" view. It is how things actually work, including that blacks -- even those who just got here -- specifically continue to be burdened.
Women are treated in a certain way too, including in bad ways. Doesn't matter if they just got here. If someone just enters a house structurally flawed, the person is still affected by the house, if not as much as the person living there for years.
I have not evidence that Brett is not gaming "polling" to be what he wants it say. The issue isn't merely "polls." We can assume "why" people do things left and right. I thought he was above such guess work & wants concrete facts. There the people continue to allow AA to exist in most places, the places where they do not underlining they have the discretion not to so allow.
He is mightly selective about "some judge" -- what about when they strike down AA programs the people SUPPORTED? Well, then, they must be "sold" a bill of goods. Have your cake and eat it too.
The people realize that public policy involves imperfect things. Heck, many support torture, though they know it's bad. I thought Brett was this hard eyed realist. Suddenly the fact that public policy involves imperfect choices is an issue? Since when?
Regarding Joe's wish on Holder, Stephen Colbert's "Word" segment yesterday (3/6/12) might be of interest.
Of course, mls could use his Point of Order website for his views on Holder's statement, with comments available from Joe, me and others. mls might decline because the focus of his website is on Congress. But Holder's comments rely upon Congress' actions shortly after 9/11. mls' congressional staff background might be helpful in addressing whether Holder has strayed from Congress' action. It should be pointed out that mls is not hesitant in raising recess appointments by the Obama Administration from the perspective of Congress.
Shag- this is out of my area of expertise. To me, Holder's speech just seems like a long-winded way of saying that the President will order targeting of American citizens abroad when he thinks it is necessary to do so. The experts at Lawfare seem impressed though.
But surely mls has expertise is understanding Congress' reactions to Holder's claim of Congress' authority to the Executive to undertake acts abroad against American citizens. Are there movements in Congress to make it clear, subject to presidential veto, that the killing of American citizens abroad would be excluded as not within the intent of Congress with its actions enacted shortly after 9/11? If so, might such movements revive actions taken by Bush/Cheney during their 8 years? I would welcome a full inquiry into whether Congress, following 9/11, degraded civil rights of individuals. Perhaps a venue outside of Lawfare might be appropriate.
Well, something outside of this thread probably would be apt.
Opinio Juris has a couple posts about it too and one has a comment that supplies some further reading. But, if one is so inclined, it can all seem like verbose conclusionary talk.
Since this is unavoidably also a discussion about equality of opportunity versus equality of results, here is one way inequality is increasingly maintained. No doubt some will immediately observe this is income not race; I will note that as long as the two are correlated they're not entirely orthogonal: perpetuating inequality based on the one perpetuates it based on the other. Underclasses historically based on race can be perpetuated just as effectively based on income disparities.
Now some might argue that as long as support for education goes into the toilet, Affirmative Action increasingly becomes a way to lure kids into a degree program they can't afford and will not complete. Thus total loss. That is true.
There are various ways to "lure" people to educational programs and since they ALL won't be unable to pay (especially state schools with lower costs with some economic help provided) "total loss" is hyperbole.
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