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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Why must we take Grutter seriously?
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Monday, August 24, 2020
Why must we take Grutter seriously?
Sandy Levinson
I confess myself quite mystified by the argument underlying Jason Mazzone's posting earlier today. Most obviously, the 25-year limit is dicta rather than holding, unless one really does believe that the Supreme Court is a super-duper legislature entitled to adopt rules and at the same time stipulate a sunset provision, without the slightest semblance of, say, hearings or citation of evidence as to why 25 years instead of 20 or 50 or whatever. I suspect that the "liberals" signed on to O'Connor's intellectually problematic opinion because it was necessary to have an "opinion of the Court" actually upholding the Michigan Law School's admissions procedure, not because they truly believed they were adopting a "rule of law" that would be binding on the future.
Comments:
“Affirmative action” racial discrimination was initially sold as a temporary measure to overcome the handicaps of Jim Crow. This was the Grutter approach.
Presuming Kennedy, er... Roberts has any interest in reversing progressive programs, the Court should reject Grutter on the ground the Court cannot suspend equal protection to protect racial discrimination for any length of time.
By the way, one may read here in "Jurist"(and links therein) titled:
"DOJ accuses Yale of illegally discriminating against white, Asian American applicants" Here: https://www.jurist.org/news/2020/08/doj-accuses-yale-of-illegally-discriminating-against-white-asian-american-applicants/
Jason Mazzone tends to be wrong so if he is, so be it.
I personally think that since Bakke that the Supreme Court was consistently too strict on what was allowable to have an affirmative action program. For instance, it is unclear to me why, per Powell, social inequality generally is not a big enough problem. Since then, the conservatives that actually were willing to allow the programs put forth some rules like some hope (and that is all it was really -- it wasn't like once 25 years passed, the bell would ring and poof no more program allowed) things might be better in the future. Since back in 1883 (Civil Rights Cases) or even earlier (1872 even) there was a "aren't we done yet" tone like racism and so on is done so we can just forget about extra efforts like these, this isn't too surprising.
"One could simply admit the "best musicians" (based on God knows what criteria) and accept the possibility that in any given year (or group of years) there would simply be no oboists, double bassists, tubas, harpists, or trombones admitted"
This statement is so obtuse I frankly can't conceive of your honestly intending it as an argument. It's jaw droppingly unserious, were it coming from somebody else I'd suspect it was intended as parody. In an orchestra, oboist and harpist are different jobs. You're certainly aware of that. So, if you need an oboist, you hire the best oboist on offer, you don't puzzle over whether the harpist is a better harpist than the oboist is an oboist. Any more than, needing a plumber, you hire an electrician because a really good electrician responded to your advert for a plumber, and, hey, a handyman is a handyman, who cares if he can't fix a leaky pipe? And there's no mystery at all how you select the best oboist: The only relevant criteria is skill, skill is reflected in sound, not sight, so you conduct a blind audition. I suppose you meant to imply that, somehow, black oboists and white oboists are incommensurate in the same way the oboists and pianists are. But couldn't bring your self to actually SAY anything that racist, so you just left it implied. Agreed, Grutner is a joke. The Court punted; They knew racial discrimination was indefensible, but also knew a shitstorm would descend upon them if they ended it. So they kicked the can down the road, rationalizing that if they gave it a while, racial discrimination would go away on its own. But, of course, like another punt we've been discussing lately, racial discrimination did NOT go away on its own. It found instead a perpetual excuse, people got jaded about it, forgot what was so awful about it, and instead of fading away, it started spreading and becoming entrenched. And so here we are, with racial discrimination in hiring and school admissions, and segregation is even starting up again. Way to go, O'Connor. You gave the racists 25 years to really dig in and fort up.
I'm not a fan of affirmative action, but it's always telling the uncommonly silly take conservatives have on it. First, talking about 'racists' who support it is like saying that persons that want to carry a gun for self defense are the same as persons who carry a gun to intimidate others. Second, they never engage affirmative action on the grounds that it is carried out: higher ed is supposed to prepare students to engage effectively in the 'real world,' the 'real world' is full of persons of color. Therefore educational institutions quite reasonably think that an absence of persons of color at their institutions harms *all* students. Any one who doesn't engage that argument is just not being serious, but instead tribalist.
Mr. W: Second, they never engage affirmative action on the grounds that it is carried out: higher ed is supposed to prepare students to engage effectively in the 'real world,' the 'real world' is full of persons of color. Therefore educational institutions quite reasonably think that an absence of persons of color at their institutions harms *all* students.
Be glad to. The diversity pretext is based on the racists assumption that people who share the same skin color all think alike and those of other skin colors cannot think like them. In the real world, people of similar classes tend to think alike regardless of skin color.
Mista Wiskas, would pro-white racists be just dandy if, instead of being motivated by animus against blacks, they were motivated by benign intentions towards whites? Would we even care if they didn't have any hostility towards blacks, just wanted to help their own race? I though the reason we objected to racial discrimination was that it was an evil in and of itself?
All this is just rationalization for racist behavior. The left finds it politically useful to buy the support of certain racial minorities with racial preferences, and so rationalizes that doing so out of purportedly good motives isn't racist. On the contrary, refusing to racially discriminate as the left directs is what's "racist"! "Therefore educational institutions quite reasonably think that an absence of persons of color at their institutions harms *all* students. Any one who doesn't engage that argument is just not being serious, but instead tribalist." Historically, this isn't the reason for racial discrimination in hiring and admissions. It's an excuse that was clutched at when they were informed "remediation" was approaching its sell by date. But, let's say it wasn't just an excuse. Sure, I'll engage it: You're using the black students as props, for the benefit of the white students? That doesn't sound very nice, but it would explain not caring about mismatch. As props, it doesn't really matter if they're academically qualified, or have a high fail rate, they might as well just be actors walking around pretending to be students. So, yes, as props it does make sense to racially discriminate in admissions, bring in students who fail the academic qualifications, but have the right skin color. Why you imagine this is a good excuse for racial discrimination escapes me, though. Maybe instead you could just run admissions on merit, and have a fixed percentage of the student body wear blackface. It would be more defensible, if all you're interested in is generating the right appearances.
As DePalma points out, appearances is what this is about: It's fundamentally racist to believe that any mental characteristic is reliably correlated with skin color, so by artificially increasing the number of blacks in an institution, or artificially reducing the number of Asians, you're not promoting intellectual or cultural diversity. Just melanin diversity.
If intellectual or cultural diversity were the goal, you'd ignore skin color and direct your efforts to those traits, instead. Skin color is a lousy proxy for culture. That's why I suggested the use of blackface. It would more directly achieve your goals, without interfering with the nominal purpose of academic institutions, education.
Skin color is a lousy proxy for culture.
Hundreds of years of society is erased since race isn't really a thing. Sandy Levinson co-wrote a book noting the complexity of diversity but race is part of it. The reference to "the left" again has a Brett meaning when rather conservative leaning people support affirmative action. Business, the military and so forth included. One can speak of "rationalization" of many things that are used by some for wrong reasons. Thus, often, people are patronized. But, this doesn't mean assistance is always something done with disdain. And, for hundreds of years now, a basic part here was use of various affirmative means to, for various positive reasons, to bring in various groups into institutions. Including members of ethnic, national and racial groups. And, there are a range of ways this was done. By the lights here, merely reaching out for something like racial mentoring since race specifically is an issue to address here is some nefarious thing "the left" does. Let's take this one bit: And there's no mystery at all how you select the best oboist: The only relevant criteria is skill, skill is reflected in sound, not sight, so you conduct a blind audition. What is totally objective "skill" that one chooses when one picks among a range of skillful musicians? The "sound" here is rather subjective, various people thinking different types of sound is good or bad. For instance, people might think rap is unpleasant even if (though they would not think so) it takes skill. If not the skill that they themselves think best. Also, musicians for a choir etc. are not just chosen for "skill" alone. Perhaps, they want to take one from different neighborhoods. Or, for some other reason. Maybe, someone is somewhat less skilled but being in the group would be of particular benefit to them so net that would be a tie breaker. And, yes, racial or other diversity might be used there since mere sound is not the only thing at issue in the real world when setting up choirs, musical groups etc.
Just to put it out there, I happen to be reading "The Enigma of Clarence Thomas" and it is useful to read his view of things.
"Hundreds of years of society is erased since race isn't really a thing."
Show me somebody hundreds of years old, and I'll concede you have a point in relation to them. Look, in terms of 'black' and 'white', Kamala Harris counts as 'black'. What hundreds of years of society are you appealing to in her case? The daughter of two upper class immigrants? You can't appeal to all these other sorts of diversity so long as the only thing you're looking at is skin color. If you want intellectual or cultural diversity, you select on the basis of those, not using melanin content as a proxy for them. A white Afrikaner or somebody from Norway is likely to bring more diversity to the campus than the umpteenth black affirmative action pick. But, again, this "diversity" rationale isn't a genuine reason for affirmative action, historically it's just something they came up with when warned that their previous excuses for racially discriminating were going to go away. So now you've got an excuse for racially discriminating that can NEVER expire. Oh, that's real progress in terms of ending the evil of racism!
As I understand Brett, he's saying that we must never take skin color into account when we try to ameliorate the harm caused by 400 years of discrimination on the basis of skin color.
I agree that there was a disconnect between the diversity rationale and the 25 years.
What I would say to academics is I don't see this going on much longer. The current court probably has 5 votes to strike down all race based affirmative action in public schools, and may even have 5 votes to read this into Title VII, which would strike it down in private schools too. So if I ran a college admissions department, I would have a Plan B.
"when we try to ameliorate the harm caused by 400 years of discrimination on the basis of skin color."
Oh, silly me, I thought you were trying to bring the campus the magical benefits of melanin diversity. You were lying about that, and it's still the rationale the Court announced would expire? Good to know! No, what I'm saying is that, at this point, it's bullshit that you're trying to "ameliorate the harm caused by 400 years of discrimination on the basis of skin color". (By discrimination on the basis of skin color, 'natch.) You're buying the political loyalty of ethnic and racial groups by offering to discriminate in their favor, that's all that is going on at this point. Why else do recent immigrants and their children count as "black" for purposes of AA, when that 400 year history doesn't have diddly squat to do with them? You know, maybe for a little while the Democratic party did care about civil rights. Maybe. But it was so easy to fall back into old patterns, return to being the party of racial spoils, only with a new client race. And it works great, all the Republicans have to offer is equal rights, what's that next to special privileges? They get outbid almost every time.
"So if I ran a college admissions department, I would have a Plan B."
Plan B: Stop racially discriminating.
As for what the law should be, I share Obama's position. I have no real objection to an affirmative action program that actually targets disadvantaged people, including the victims of racism.
I have a BIG problem with the programs as they currently exist. Essentially they are a big boost for middle and upper class Blacks and Hispanics, while doing nothing for poor and working class people of any race, and actively discriminating against Asians in basically the same way that Jewish enrollment was once capped. Even if we had a SCOTUS that wasn't going to strike this all down, I would still favor drastic changes. Affirmative action, to be meaningful, has to let in people who privileged folks don't want to associate with. That's what real diversity means. And it shouldn't be used to keep out Asians based on stereotypes of how they affect the college environment.
Well, then we're in agreement, Dilan. AA as it exists makes no sense based on the alleged rationale.
Affirmative action aimed at disadvantaged individuals in a color blind manner? I could get behind that, if AA meant was it originally was supposed to mean: Extra effort to find qualified people, not waiving qualifications on the basis of race.
Affirmative action programs -- which involve a range of things -- are part of the process of "stopping [invidious] discriminating."
Show me somebody hundreds of years old, and I'll concede you have a point in relation to them. What? Again, hundreds of years of race being part of our society means, along with other stuff [the current rule for affirmative action is you can't take race alone], means race still matters. Look, in terms of 'black' and 'white', Kamala Harris counts as 'black'. What hundreds of years of society are you appealing to in her case? The daughter of two upper class immigrants? Again, what? Her parents come from two countries where racism was a thing for centuries and being upper class doesn't suddenly mean racism isn't a thing. And, generally speaking, part of racism and other invidious discrimination included immigrants. It is not like blacks from the West Indes aren't discriminated against. You can't appeal to all these other sorts of diversity so long as the only thing you're looking at is skin color. Thus, as I noted, Sandy Levison et. al. don't just look at one thing. But, race is part of it. If you want intellectual or cultural diversity, you select on the basis of those, not using melanin content as a proxy for them. A white Afrikaner or somebody from Norway is likely to bring more diversity to the campus than the umpteenth black affirmative action pick. You don't just use "melanin content," but race is a thing in this society and ignoring that along with other things it brings forth a specific point of view and set of experiences is silly. Not that diversity alone to me is necessary to defend AA. It is somewhat forced on institutions given artificially narrow Supreme Court rulings. But, again, this "diversity" rationale isn't a genuine reason Yes, it is. At least, it's part of it. historically it's just something they came up with when warned that their previous excuses for racially discriminating were going to go away. So now you've got an excuse for racially discriminating that can NEVER expire. Oh, that's real progress in terms of ending the evil of racism! Who are "they"? The fictional 'left'? When, e.g., the military specifically used affirmative action to help having a well rounded modern military, what "excuse" are we talking about. Diversity, including for racial groups, is an ancient concern on some level. As a matter of Supreme Court precedent, it is specifically tied to Bakke, Justice Powell seeing it as a 1A good tied to academic freedom. He did not just use race alone here. It is fine to use that as part of the grounds though it is artificial to use it alone. Still, dealing with racism is going to include dealing with race, taking it into consideration. Justice Blackmun and now Sotomayor are correct.
"ho privileged folks don't want to associate with"
whatever such a nebulous concept amounts to The programs are a diverse lot and include people many "privileged folks" don't like much. I have no big answer on how to set an ideal system, especially given the limitations of political reality. Alternatives would also be a level of effort, monetary and otherwise, many opponents have no apparent willingness to actually do either. Thus, the imperfect methods used.
whatever such a nebulous concept amounts to
It's not really that difficult. There are groups of people who are historically excluded. These include a lot of Black folks- but not, for the most part, the Black folks who get in with affirmative action programs. If you grow up in Commpton or Watts, you simply have almost no chance of getting to Harvard. LA sends plenty of Black folks to Harvard, but for the most part they are the children of Black professionals and Black kids who grow up in the wealthier parts of town or the suburbs. This, I contend, is not accidental. Our entire system of education, from Kindergarten up through graduate school, is designed to keep out outsiders who are thought to have a negative influence on the well off strivers who dominate the system. And this isn't accidental. People at these places don't want to associate with folks who grew up in the ghetto, or Appalachia. They want to associate with other people like themselves.
"Oh, silly me, I thought you were trying to bring the campus the magical benefits of melanin diversity. You were lying about that, and it's still the rationale the Court announced would expire?"
Affirmative action in college admissions serves 2 purposes. One is diversity on campus so that students learn to deal with people of different colors and cultures. The other is to make up for the disparities caused by 400 years of discrimination, but the courts won't accept this reason (though it's the better one) and so lawyers talk about the diversity rationale invented by that notorious liberal Lewis Powell and affirmed by that other notorious liberal Anthony Kennedy. "You're buying the political loyalty of ethnic and racial groups by offering to discriminate in their favor, that's all that is going on at this point." Affirmative action for white people lasted 400 years and it's intrinsic to the Trump movement. Stones, glass houses. "Why else do recent immigrants and their children count as "black" for purposes of AA, when that 400 year history doesn't have diddly squat to do with them?" I know that math is not a strong point for you, you being an engineer and all, but 400 years starting in 1619 takes us right up to today. That's right: discrimination on the basis of skin color still exists, affecting recent immigrants and the descendants of slaves alike, as do the residual effects of past discrimination.
"but the courts won't accept this reason (though it's the better one)"
Because it can't be a perpetual excuse to continue racial discrimination forever. At some point, the sins of the past have to be accepted as sunk costs, and we have to get to equal rights. Math IS a strong point with me, but I'm also aware that nobody has experienced 400 years of racial discrimination. On EITHER end of it. So 400 years is freaking irrelevant. Legally AND morally. And then somebody comes from somewhere else, and you're all, "Well, they had 400 years in their past, too." Which reveals that you don't actually care about the 400 years, it's just an excuse.
"Because it can't be a perpetual excuse to continue racial discrimination forever."
"Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk and until every drop of blood drawn with the lash shall be paid by another drawn with the sword as was said three thousand years ago so still it must be said 'the judgments of the Lord are true and righteous altogether.'" It's mighty convenient that whites get to keep the benefits they stole from blacks over the past 400 years (and still benefit from today), yet blacks get nothing in return.
Mark: It's mighty convenient that whites get to keep the benefits they stole from blacks over the past 400 years (and still benefit from today), yet blacks get nothing in return.
What whites today? What blacks today? What stolen benefits? The vast majority of the European Americans (including most of my family) arrived afterwards and had nothing to do with Democrat slavery and Jim Crow. A majority of today's African Americans were born after Jim Crow ended. 160 years ago, the Union devastated the slave state economies to free the slaves in a war which claimed over a million white lives. If there was a group race debt to be paid, the Civil War paid it with interest.
diversity on campus so that students learn to deal with people of different colors and cultures. The other is to make up for the disparities caused by 400 years of discrimination, but the courts won't accept this reason (though it's the better one)
It's worth noting that the second reason is actually both better and worse. It is better in that it both presents something morally compelling and happens to be how a lot of college administrators espouse about this. But it is also worse. In 2 ways: First, while college administrators espouse it, they don't mean it. They want RICH Black people. Or slightly more accurately, they want Black people who, along with their families, are likely to donate to the universityl. And they want Black people whom their white students (many of whom come from the families of rich donors) feel they can get along with. The last thing that a selective university wants to do is identify actual disadvantage. Doing so will slash their donor base. And second, it also doesn't really fit with 14th Amendment law. There really isn't any legal principle that says "institution A discriminated historically against a racial group. So institution B, which did not engage in such discrimination, can go ahead and discriminate the other way". There ARE, of course, institutions that really did discriminate against some racial groups, and it is plausible to argue they should be able to offer a remedy. In that sense, the SCOTUS conservatives are wrong. But if you don't require any showing of institutional culpability at all, boom, you've basically just held that the Fourteenth Amendment and civil rights laws don't apply at all to discrimination in favor of certain racial groups. And that's not really legally supportable.
It's an easily empirically verifiable fact (polls, consumer research, etc.) that in general black and Hispanic culture differs from white culture. Given blacks and Hispanics are a big chunk of the US workforce, consumer base, etc., any education that doesn't give an insight into those cultures is quire reasonably thought to be deficient.
"What whites today? What blacks today? What stolen benefits?"
A major predictor of college attendance is if your parents attended. Consider that just two generations ago many major colleges actively discriminated against blacks. The main source of wealth is a house, which is often inherited. Whites are far more likely to have an inherited house because just two generations ago many blacks (if not most) faced extraordinary discrimination. And this doesn't even acknowledge 'soft power' things such as that, for example, the first black superhero in comic books didn't come until several decades of comic books. Role models and representation matter.
I don't think it really matters to the constitutional issue, but the reality is that while Blacks and Hispanics in many ways do have unique cultures, they are far from monocultures. And a racial quota doesn't get at this (and in fact allow selective universities to select only the sorts of people who they think won't offend their other students and who will donate money).
With Hispanics, this point is obvious. Cuban-Americans are a far, far different culture than Mexican-Americans, who are in turn different from Puerto Ricans. Americans of Central American and South American ancestry are also different. But it's also very true of Black culture. What I think many people think of as Black culture is a sort of vocal urbanism that arises out of the big cities. But the Black voters of South Carolina who voted for Joseph Biden and propelled him to his primary win are mostly rural Christians many of whom have never listened to a gangsta rap record. It's not anywhere near as simple as "you let in X number of Black and Hispanic students, you get diversity".
" the Fourteenth Amendment and civil rights laws don't apply at all to discrimination in favor of certain racial groups. And that's not really legally supportable."
The exact same Congress that put forth the 14th Amendment passed legislation favoring black persons specifically. This has been covered at this blog by Gans several times.
"It's not anywhere near as simple as "you let in X number of Black and Hispanic students, you get diversity"."
You're needlessly overcomplicating it. The more blacks or Hispanics you have at your institution the more likely you're going to get at a different, unique cultural view. It's interesting that conservatives try to ignore this in this aspect, because they absolutely believe it in other scenarios. Charles Murray wrote a much cited book about how white elites are out of touch with white working class culture because they can't name a NASCAR driver or a Golden Corral menu item. Conservatives often and loudly claim that they should have more representation at universities because a third of the nation is conservative. Well, of course the same can be said of black and Hispanic culture. Also, the idea that an older black South Carolinian doesn't have unique cultural bridges with their younger children and grand children is not only laughable but easily empirically refuted.
It should also be noted that institutions like higher ed work to foster diversity because it is good for their bottom line. I'm a comic book fan and just experienced DC's 'Fandome' which was a kind of virtual Comic Con by one of the 'big two' comic companies. You know what kept coming up? Diversity. Those CEO's aren't pushing this for social justice reasons, they are pushing it because it's what the market wants. They want that Black Panther and Wonder Woman money. Every major company is pushing this. It's funny to watch market worshipers like our Birchers bemoan what is, after all, a mainly market phenomenon. Universities want diversity because parents and students know that that is important for a good education for the real world marketplace.
The exact same Congress that put forth the 14th Amendment passed legislation favoring black persons specifically. This has been covered at this blog by Gans several times.
I'm not an originalist, but even if I were, this doesn't prove that the Fourteenth Amendment was meant to exempt discrimination in favor of Blacks. It would establish, to an originalist, that people like Scalia and Thomas are wrong and that some forms of remedial legislation are constitutional. But bear in mind, a college affirmative action program is a long way away from the Freedman's Bureau. The post-14th Amendment remedial laws were targeted at former slaves, who had the strongest possible claim for redress. Modern affirmative action programs target a bunch of groups who were nowhere within the original intention of the Fourteenth Amendment's authors, and also discriminate against some historically oppressed groups such as Japanese-Americans. In any event, what I am getting at is an interpretation of the Fourteenth Amendment that wholesale exempts discrimination in favor of Blacks and against whites is not really sustainable. It's not consistent with the rest of discrimination law- for instance, men have won sex discrimination claims. It's also not something that even the most liberal SCOTUS justices have ever endorsed (even Brennan and Marshall thought affirmative action plans had to be tailored to a certain extent and meet what we would now call intermediate scrutiny). And it would very potentially screw up the law. For instance, would this mean that racial harassment by a Black boss against white employees would be not actionable? There has to be some level of scrutiny for affirmative action programs, some connection between wrongful acts, culpability, and remedy, because otherwise it creates this problem.
It's not about remedy at all, it's about a compelling interest. Take a police force. An all white police force patrolling a black or Hispanic neighborhood is a disaster waiting to happen. Even conservative criminologists like James Q. Wilson conceded that if affirmative action was the way to get diverse police forces we just have to have it if we want a non-disasterous police force. Likewise educational institutions would be failing their missions if they didn't have any black or Hispanic students or faculty or staff around. The 'discrimination' is *for* the white students, (and the black and brown and etc) though in individual cases it might operate against some of them.
The idea of 'merit' that Bircher Brett floats is nonsense. Colleges don't operate to promote some abstract idea of 'merit' because 'merit' in an abstract sense isn't necessarily useful to society. A white doctor might be 'better' in some test taking sense but if black persons and Hispanic persons don't trust them and avoid them then that's not helping society overall. In short the argument is that we have to take race into account because for most of our history race mattered, big time. The effects of that haven't gone away.
Another thing about 'merit.' Take two kids, one, a black kid who goes to a poor high school. The other, a white kid who goes to a wealthy high school. Both of them are athletic. The white kid has state of the art training facilities and coaching, the black kid has neither. As a coach, I see the white kid bench 300 pounds and the black kid 290, the white kid runs the 40 in 4.6, the black kid 4.7. If I'm a smart coach I take into account the disparities and realize that the black kid is actually the better selection, though on 'merit' he's 'behind' the white kid it's a good bet his potential merit is actually higher. This is the kind of thing that gets lost in discussions of 'merit' by people like Bircher Brett, but that's because he's ensconced in his white male privilege and determined not to be introspective about it.
The more blacks or Hispanics you have at your institution the more likely you're going to get at a different, unique cultural view.
This is way, way too reductive. There are a whole bunch of metrics of diversity. Urban-suburban-rural. Religious-non-religious. Artistic-scientific. Striver-slacker. Athletic-non-athletic. Nerdy-jock. West Coast-East Coast. Liberal-conservative. Born in America-immigrant. Helicopter parents-latchkey kid. One of the deeper critiques here is using this one measure of diversity ends up with an entering class including a lot of Black and Hispanic students who have the most in common with the whites in the entering class. Whereas if you actually were trying for diversity, you would want to cast a much broader net than they in practice do.
"The exact same Congress that put forth the 14th Amendment passed legislation favoring black persons specifically. This has been covered at this blog by Gans several times."
As Dilan says, the beneficiaries of this legislation were the Freedmen, who personally had been enslaved. The discrimination was on the basis of formerly having been a slave, NOT race. Today's beneficiaries of AA are merely people who look something like those freed slaves generations ago, and often aren't even descended from them. In some cases, ironically, are descended from the very slave traders who had enslaved the Freedmen's ancestors back in Africa. But, Dilan, as absurd as it is, this is what they want: Not just for the 14th amendment to permit racial discrimination so long as blacks are the beneficiaries. If they can swing it, they want the 14th amendment to be interpreted as demanding it, and prohibiting non-discrimination. Look at the current effort to repeal Prop 209 in California. The attempt to have Proposal 2 in Michigan struck down under the 14th amendment. Every state that banned affirmative action was hit by court cases insisting that it was unconstitutional to do so. And that position was not entirely without support in the Supreme court. As I said above, the Democratic party was, for generations, the party of racial spoils. It was very easy for them to slip back into that comfortable role, only changing which race benefited. At all costs they don't want to be forced out of it.
It's not about remedy at all, it's about a compelling interest. Take a police force. An all white police force patrolling a black or Hispanic neighborhood is a disaster waiting to happen.
If you want to argue some forms of affirmative action meet strict scrutiny, I agree they do; and the police force example might be one of them. But a typical college admissions program should fail strict scrutiny, rigorously applied, because (1) the interests in racial diversity in education are less compelling than in your police force example and (2) these programs are not close to narrowly tailored and in fact do not purport to be. Likewise educational institutions would be failing their missions if they didn't have any black or Hispanic students or faculty or staff around. Well, nothing stops them from admitting Black and Hispanic students! For instance, they can consider high school grades but not emphasize the SAT's, they can eliminate legacy preferences and increase athletic scholarships, they can offer more slots to international students, they can reserve slots for underprivileged areas in their own communities, they can do class-based affirmative action, etc. There's all sorts of fully constitutional means for a university to ensure that there are Blacks and Hispanics are in the entering class. As for "merit", I am making no arguments about "merit". It's too slippery a concept, although obviously, under the Bakke and Grutter holdings, it is relevant to the legal issue here.
"This is way, way too reductive. There are a whole bunch of metrics of diversity. "
This is silly. It's the logic that says 'well, women are quite different, so we need not have any women in this company or on this team.' Yes, women are different than each other, but women in general have empirically verifiable general differences than men. Same for race. By the way, higher ed institutions most definitely try to take into account what you're talking about, they give affirmative action to rural students if its an urban institutions, urban students if its rural, etc. Historically black colleges often give preference to white students too.
"the beneficiaries of this legislation were the Freedmen"
Actually, no. As Gans has noted here many times the same Congress often passed legislation to help 'the Freedmen' *and* at other times passed legislation specifically helping 'black' or 'colored' people. Sorry, that's the 'law as written,' though Bircher's may not like it. The people who wrote the 14th Amendment most certainly did not think it prohibited racial preference policies for *disadvantaged* races. Again, the idea that giving a disadvantaged race a hand up is the same as keeping them down is as stupid as thinking that carrying a gun for self defense is the same as carrying it to strong arm people.
"he interests in racial diversity in education are less compelling than in your police force example and (2) these programs are not close to narrowly tailored and in fact do not purport to be."
This is not what the experts in higher ed hold though, and perhaps you don't know as much as they do about what their institutions need? "There's all sorts of fully constitutional means for a university to ensure that there are Blacks and Hispanics are in the entering class." Yes, and affirmative action is one of them! (they engage in all the things you're talking about, of course.)
"the beneficiaries of this legislation were the Freedmen, who personally had been enslaved."
The beneficiaries of AA today are pretty much everybody. The whole society benefits, as MW has pointed out. But if you insist on strict economic harm, then it's also the case that blacks today have personally, individually been discriminated against and/or suffered from historical discrimination in ways which disadvantage them in society now. To pick an easy example just from today's news, see https://www.nytimes.com/2020/08/25/realestate/blacks-minorities-appraisals-discrimination.html?smtyp=cur&smid=tw-nytimesbusiness
"This is not what the experts in higher ed hold though, and perhaps you don't know as much as they do about what their institutions need?"
We don't normally take the claims of people who want to racially discriminate that it's necessary as dispositive. We require them to persuade other folks who are less enthusiastic about the idea. Let's be clear: A totally race blind admissions policy would NOT result in a lily white student body. Not at Podunk U, not at MIT or Harvard. Prop 209 didn't render California's universities monochromatic. Why would anybody but a racist think it would? The disparities in educational qualifications of applicants by race aren't THAT stark! It would just result in a student body representative of qualified applicants, rather than warm bodies in the country. And reduce the pressure to supplement racially discriminatory admissions with racially discriminatory grading, to keep the fail rate of under-qualified minorities from looking bad.
Instead of just asserting "facts" about college admissions, you might cite actual studies of the impact: https://www.msn.com/en-us/news/us/prop-209-s-affirmative-action-ban-drove-down-black-and-latino-uc-enrollment-and-wages-study-finds/ar-BB18g9DD
"It would just result in a student body representative of qualified applicants"
"Meritocratic" admission is a myth. "And reduce the pressure to supplement racially discriminatory admissions with racially discriminatory grading" Grading is blind at most universities these days.
Yes, the disparities are that stark. And it's not surprising given that blacks were en masse the target of widespread and relentless discrimination for about 95% of our history. Our society is about 15% black and a college that is 3% black is quite reasonably seen as ill preparing their students for the real world. It's an 'ivory tower' indeed.
Also, as to grading, it's quite clear Bircher Brett hasn't set foot on a campus in decades. I regularly teach as an adjunct and I've seen no pressure at all to pass minority students. It's also fun to see the GOP convention engaging in gymnastic levels of affirmative action in their choice of speakers, digging down to find their black, Hispanic and women office holders and putting them up front. Even the GOP knows that this is wise.
This is not what the experts in higher ed hold though
It's not their call. Experts can never testify in court about an ultimate legal issue. Yes, and affirmative action is one of them! (they engage in all the things you're talking about, of course.) Under current law, some forms of affirmative action are constitutional. Others are not. And it all expires in a few years.
You might want to re-read Bakke, Grutter, Fisher, etc., they all put great weight on what experts in the field think is a compelling interest.
It's the logic that says 'well, women are quite different, so we need not have any women in this company or on this team.'
No it isn't. It's the logic that says "if I find these women who have very similar backgrounds and life experiences to the men, I haven't achieved a ton of diversity".
""Meritocratic" admission is a myth."
At the least, you're determined to make it a myth. "Yes, the disparities are that stark" From Mark's link: "The proportion of underrepresented groups — commonly defined as students who are Black, Latino, Pacific Islander or American Indian — dropped from 20% in 1995 to 15% in 1998" I don't call that "stark". 15% minority certainly isn't "lily white". So let's stop pretending that, in the absence of racial discrimination, blacks and other minorities would no longer be getting admitted to universities. They still would, just in moderately lesser numbers, in proportion to their actual qualifications. "Our society is about 15% black and a college that is 3% black is quite reasonably seen as ill preparing their students for the real world. It's an 'ivory tower' indeed." Setting aside that the Prop 209 numbers don't support your 3%, you're back to asserting that you're entitled to use blacks as props for the benefit of white students, who will magically benefit from seeing black people around. I renew my counter proposal: Admit on merit, and mandate that some fraction of the white student body wear blackface. It will accomplish as much.
Actually, no. As Gans has noted here many times the same Congress often passed legislation to help 'the Freedmen' *and* at other times passed legislation specifically helping 'black' or 'colored' people.
I agree with you that some legislation was specifically remedial towards Blacks, but that doesn't prove anything like what you need it to prove. After all, how many Blacks in 1868 in the United States were not either former slaves or the children of former slaves? And as I said, that certainly isn't an all purpose mandate to, for instance, discriminate in favor of Cubans and against Japanese, as many affirmative action programs do.
Instead of just asserting "facts" about college admissions, you might cite actual studies of the impact: https://www.msn.com/en-us/news/us/prop-209-s-affirmative-action-ban-drove-down-black-and-latino-uc-enrollment-and-wages-study-finds/ar-BB18g9DD
Nobody doubts it drove it down. It also drove up Asian enrollment. So it for the most part assisted one group that faced huge discrimination (Japanese internment, the prohibitions against Asians owning land, the use of Chinese laborers on the railroads, etc.) in California history at the expense of a couple of others who also did. Is that wrong? Is that right? I think it's a VERY complicated issue, and certainly requires a lot more nuance than setting aside seats in a class for the children of wealthy and middle class Black families.
You might want to re-read Bakke, Grutter, Fisher, etc., they all put great weight on what experts in the field think is a compelling interest.
No, they place great weight on the benefits that experts say that diversity provides to the college entering class. That's a very important distiniction. Testimony as to whether an interest is compelling is strictly inadmissible in court. Experts can say "this helps us", but only the Court can determine if the interest is ultimately compelling. And at any rate, you have to meet the other half of the test- narrow tailoring- as well.
"No it isn't. It's the logic that says "if I find these women who have very similar backgrounds and life experiences to the men, I haven't achieved a ton of diversity"."
That's silly, women are going to have different experiences than men in general. That's an easily verifiable fact. The idea that we can't try to foster having more women in an organization because there are differences between women is silly.
Bircher Brett's blackface analogy would no doubt delight him, but of course he's just again refusing to acknowledge an easily verifiable fact: that blacks in general have statistically significant attitudes, opinions, tastes, etc., than whites. Black face won't cut it.
That's silly, women are going to have different experiences than men in general. That's an easily verifiable fact
Part of the problem here is you have to make this work as law. Internet debating society type points aren't sufficient when there's a legal text. Saying what you just said is gender stereotyping. It has some truth to it, but it's not the sort of generalization that by itself is sufficient to justify discriminatory conduct. You need more specifics. The way you get more specifics- and this WAS one of the stronger arguments in Powell's Bakke concurrence- is by considering the whole person. You don't just say "I'm going to have a quota of 10 women". Indeed, a quota of 10 women is illegal! It really is. The only exception would be if it were imposed as a remedy for a discrimination suit. But just as an out of the blue decision that "we need more women here", it's illegal. It violates the Civil Rights Act. Indeed, Ruth Ginsburg cut her teeth as a lawyer successfully litigating that discriminatory policies against men could not be based on gender stereotyping. What may not be illegal is to seek diversity. But that can't just be a stereotype. You actually have to seek diversity. You actually have to look at the whole person and what they bring to the organization. Achieving real diversity is hard. Quotas and set-asides can actually make that job harder, because it allows people to just point to the numbers when they have actually just let in a bunch of people of broadly similar backgrounds and huge dollops of privilege. (While excluding, in the education context, Asians who they don't want to let in for the exact same reasons they kept the Jews out back in the day.)
""The proportion of underrepresented groups — commonly defined as students who are Black, Latino, Pacific Islander or American Indian — dropped from 20% in 1995 to 15% in 1998""
In the 2000 census, those groups accounted for 40% of the CA population. Their percentage was low to begin with and dropped further. It also found that those populations were harmed: "The study found that Proposition 209 did harm Black and Latino applicants." In addition, the study found that AA did not harm white or Asian applicants, so the 25% drop for the rest provided no benefit: "This study presents several complementary pieces of evidence that suggest that the benefits provided by affirmative action to Black and Hispanic Californians prior to Prop. 209 substantially exceeded the costs faced by white and Asian Californians, and that those costs may have been quite small," said Zachary Bleemer, the study's author and a research associate at UC Berkeley’s Center for Studies in Higher Education."
"but of course he's just again refusing to acknowledge an easily verifiable fact: that blacks in general have statistically significant attitudes, opinions, tastes, etc., than whites. Black face won't cut it."
And you're refusing to acknowledge an obvious fact, that blacks as individuals have different attitudes, opinions, tastes, etc., rather than being interchangeably different from whites in that regard. Just as whites have, as individuals, different attitudes, opinions, tastes, etc., rather than being an undifferentiated mass. So, if the actual benefit of "diversity" is coming from diversity of attitudes, opinions, tastes, and so forth, you could achieve it without any 14th amendment questions at all, by directly conditioning admissions on the basis of creating a diversity of attitudes, opinions, tastes, and so forth, without any reference at all to race or ethnicity. Just as Dilan points out that you can create a perfect rainbow of melaninic diversity while assuring a monoculture of attitudes, by which blacks, whites, and so on you admit. That's why I mock your vision of diversity by proposing the use of blackface. The color really does seem to be the important thing to you, not what's going on in people's heads, or else the quotas would be on the basis of opinions, not races!
Mr. W. speaks of statistical wholes and Brett speaks of individual pinpricks.
As noted by me above, current law is that you can not merely use race. You must use race as a factor that takes into consideration other things. The limited number of slots results in various categories to be factored in. Race alone is not used. You can over and over again imply so, but it is not. Keep on repeating "melanin" all you wish. Race is a thing. Rich, poor, immigrant, non-immigrant etc. People can cite individual members of such categories that in some fashion are different. But, as a whole, as Mr. W. notes, there is an "easily verifiable fact: that blacks in general have statistically significant attitudes, opinions, tastes, etc., than whites." From being black, not having blackface in which the person is actually not black, and has not actually, all their life, including in respect to family and generational experience, being black. Which is a thing in this society. Reference is made to some "directly conditioning admissions on the basis of creating a diversity of attitudes, opinions, tastes, and so forth." What exactly is the thing here? Race is such things as are other things. Again, the other categories are not exact either. Gender for instance is not some exact thing. Reference is also to "you." I take this as the collective you -- the army, the military, business, Republicans [like Maureen E. Mahoney, who argued for the university in Grutter, who worked in the Bush41 Administration] etc.
I also wish to reaffirm my statement that those so disdainful of an imperfect means to address clear burdens to certain racial groups, reflecting historical and current wrongs [Mark cites some numbers to clarify], repeatedly don't show the willingness to support that alternatives that might be used.
In part, since many of them are loathe to even admit racism is still a big problem. Like Nikki Haley, they wish to say we are not really a racist country. Racism is mostly a thing in the past. Trump isn't really racist etc. I still think race conscious programs would be part of the policy throughout the country in some form. But, like in the past when separate was never really equal, it would sell better if there was more support of the hard, expensive and extensive policies that would be used instead of race conscious affirmative action. Not just small nods such as limited voucher plans or something. Things like a big overhaul of public schools and so forth.
"You must use race as a factor that takes into consideration other things."
Which in practice automagically reproduces exactly what you'd have done if you had only been taking race into account. A goal that you won't permit yourself to not reach is just a quota by another name.
Which in practice automagically reproduces exactly what you'd have done if you had only been taking race into account.
Not necessarily. If the defendant is being honest (which I accept is a questionable assumption when it comes to college admissions offices), you wouldn't necessarily get the same numbers when race is just a factor as opposed to when there's a quota. Because in some circumstance you would say this other person who brings all sorts of other diverse experiences is offering more than the striving minority applicant who went to a suburban school and took all the same AP courses as half the class. The other thing to say about this is it can also be the difference between complying with the law and failing to comply the law. The law says you can't have a quota. Again, I don't think schools are being honest and some of them probably have quotas. But if you don't have a quota and use race as one factor among many, so that the percentages are not fixed year to year and you get diverse entering classes, under current law that probably passes muster whereas the quota is illegal.
I also wish to reaffirm my statement that those so disdainful of an imperfect means to address clear burdens to certain racial groups, reflecting historical and current wrongs [Mark cites some numbers to clarify], repeatedly don't show the willingness to support that alternatives that might be used.
I absolutely agree with this. It's lonely out there on the island where Richard Kahlenberg and a few other people are. I will say the other side is true too. Which is that there is no way in hell that college administrators want to either to admit lots of students who have no money and no connections and who won't bring in donations or to do things like getting rid of legacy and donor preferences (and athletic preferences at Ivy League schools that have a lot of rich white sports) that would actually allow them to diversify their classes without screwing over Asians. One of the biggest problems here is that almost nobody is acting in good faith.
Race alone is not used.
At some schools, it clearly is. If the percentage of various minority groups in each entering class is almost exactly the same from year to year, the school is lying and they clearly have a quota. One of the reforms that would do a ton of good would be to just bring all this into the open. Make all admission decisions, to admit or to not admit, public, and make applications public. Do it all in public. That would, obviously, make it easier for plaintiffs' lawyers to bring discrimination cases. But it would also, probably, force college admissions personnel to act in much more defensible ways. And specifically, an admissions program that used race as one factor would look totally different at this granular level than a quota system. If the colleges are actually doing what they claim to be doing, they'd come off looking good, actually.
easily verifiable fact: that blacks in general have statistically significant attitudes, opinions, tastes, etc., than whites
Since two people have now said this, I will just say that this is not a statement I would make in this form. I know what you guys are getting at- I don't deny that there are obviously forms of African-American culture. But when you put it like this, you are basically uttering an offensive stereotype. If you don't believe me, substitute the words "Jews" and "gentiles" for "blacks" and "whites" in that sentence. There was a piece- it may have been by Michael Kinsley in Slate- years ago in which it was argued that the same arguments that support racial profiling by the police support race-based affirmative action. I don't totally buy that- again, I am very ambivalent on this topic and certainly see the benefit of trying to bring victims of racist oppression into the world of privilege. But when you make this clumsy, ham-handed, stereotypical, bordering-on-racist hasty across the board generalization about "black culture" and how you are going to automatically get diversity just by letting in more Blacks, I mean, it really makes Kinsley's point. You're assuming "Black" = a monolithic set of attributes, just like the racist cop does.
In addition, the study found that AA did not harm white or Asian applicants, so the 25% drop for the rest provided no benefit:
Welcome to Lake Woebegon College, where everyone meets the selective criteria for admissions! Seriously, if that study really said that, it's one of the most intellectually dishonest pieces of garbage in history. This is like arguing that you have a 12 pack of beer, and can place 2 more cans in, and no cans have to come out. Again, I am amenable to arguments in favor of affirmative action. I don't think it's necessarily always a legal violation, and I also think there's justification for reaching out to disadvantaged people. But the notion that there isn't a 1-to-1 relationship between people who gain seats in the class and those that lose them is just unmitigated BS. Someone is losing from these policies- and given the number of Asians in the UC system, it was CLEARLY Asian students. (Indeed, there were statements on the record that pre-Prop. 209, the Berkeley Admissions office EXPRESSLY discriminated against Asians and tried to maintain a cap.)
So, Brett takes out a bit of my comment and even that bit is dubious by the light of someone more wary of AA as applied than some here.
"statistically significant attitudes, opinions, tastes, etc., than whites" As to a reply, Jews are different races, so they can be white or black. But, Jews do have as a group different attitudes, opinions, tastes etc. in a statistical significant way. As do other groups, depending on how one phrases "Jew" (religion or ethnic group). Anyway, again as to the first part, the actual application of affirmative action takes into consideration different characteristics of an individual. In some cases, the institution in question likely bends the rules [bending the rules? shocking], but even there, they can't totally do it. In other cases, much less so. But, making the rules somewhat stricter isn't what is being suggested. It is -- even if race is used as one criteria among many -- it is invidious.
"Not necessarily. If the defendant is being honest (which I accept is a questionable assumption when it comes to college admissions offices), you wouldn't necessarily get the same numbers when race is just a factor as opposed to when there's a quota."
Yeah, that's why I said "in practice". In theory, "separate but equal" could have been equal. In practice, it never was, because the people who wanted separate didn't want equal. Eventually the judiciary had to recognize this. In theory, "holistic" admissions could fail to reproduce a quota. In practice, it almost always will, because they people implementing "holistic" admissions want a quota. The PURPOSE of "holistic" admissions is to deniably implement a quota. You see this dynamic over and over. In theory you can compromise on a basic constitutional point, without comprehensively violating it. In practice, it doesn't work that way, because the reason the people doing it want to compromise the constitutional point is because they DO want to violate it. Gun control, free speech, equal treatment under the law, this dynamic plays out over and over.
"As to a reply, Jews are different races, so they can be white or black. But, Jews do have as a group different attitudes, opinions, tastes etc. in a statistical significant way. As do other groups, depending on how one phrases "Jew" (religion or ethnic group)."
That's true. It's also irrelevant. There are lots of things that correlate in a general way with race or ethnicity. But each specific person none the less remains their own person, not a mere instance of a group. And if you're concerned with something that merely correlates with race, you concern yourself with that thing, not with race. Indeed, I would say the essence of racism is just exactly this: Thinking that you can treat people as mere instances of their group, rather than as the individual they really are. The correlations appealed to may be false, they may be true, but the root sin is thinking they matter.
This issue is simple. The government never possesses a compelling interest to discriminate on the basis of race or ethnicity. Certainly not on the basis of racist belief people are diverse from one another concerning anything apart from the the melanin content of their skin based on race. Never, period.
"I would say the essence of racism is just exactly this: Thinking that you can treat people as mere instances of their group, rather than as the individual they really are. The correlations appealed to may be false, they may be true, but the root sin is thinking they matter."
Yes, your view is that we can't take race into account when trying to solve the problems caused by racism.
You also don't solve the problem of racism by ignoring it. As history down through the years proves.
Brett, affirmative action, in theory, isn't racist. It's not racist to want to identify disadvantaged people- INCLUDING people disadvantaged based on race- and help them.
The reality is more complicated. The concept of racial diversity CAN empower racists. That's what I think happened with anti-Semitism in college admissions 100 years ago, and that's what happens with anti-Asian prejudice now. These programs allow people who hold stereotypes that certain ethnic groups are "too studious" and "too nerdy" to act on those prejudices and pretend they are being racially progressive. But that doesn't mean the entire enterprise is racist. It's not. As to a reply, Jews are different races, so they can be white or black. But, Jews do have as a group different attitudes, opinions, tastes etc. in a statistical significant way. As do other groups, depending on how one phrases "Jew" (religion or ethnic group). We are now well over the line into anti-Semitism now.
. In some cases, the institution in question likely bends the rules [bending the rules? shocking], but even there, they can't totally do it.
This is where strict scrutiny is pretty important. One of the things that strict scrutiny is supposed to do, whether it is speech, racial discrimination, or some other fundamental right we are talking about, is prevent people from bending the rules. Everything is supposed to be absolutely necessary to serve the interest.
Brett, again picking and choosing, skips over that it was said "in some schools" that race alone is used. So, "in practice," even per a person more suspicious (who Brett "agreed" with at one point), it often is not used alone.
As to free speech, gun control etc., as a general principle, the fact the rules are bent is not refuted. But, for years now, how exactly Brett argues they are have been shown to be wrong. So, a limited regulation based on centuries long concerns that historians and others show is based on original understanding (if that matters), is tarred as some "banning of books" when the books are not banned. A particular means of payment is. The people are not merely treated as "a group" as has been noted. Regulations do classify, including based on certain characteristics. But, individuals as such are even then treated as individuals in specific cases. They "remain their own person." But, regulations don't treat 330 million people separately. Specific classifications are used. This includes when deciding who to fill in slots, including oboe players, who again are not merely picked because of some objective "sound" criteria.
"We are now well over the line into anti-Semitism now"
For stating that Jews is some statistical fashion have different views, attitudes etc.? This doesn't mean every individual Jew (or Catholic or Protestant or Muslim or Buddhist or secularist or ...) has the SAME views. Or, that there is anything wrong with them. Or, they should be denied civil rights as Jews or Catholics or whatever. It just means that is some statistic sense you can state some general things.
"my view is that you don't solve the problems of racism by being racist."
Your view conveniently rejects any solution at all to the problem of racism. We have a word for that.
Let's be clear here. "Statistically, ______ as a group have different behaviors and attitudes" is EXACTLY what racists say about Black people. And exactly what anti-Semites said about Jews. It's exactly what Al Campanis said about why Blacks supposedly couldn't run a baseball team.
This is the language of prejudice. Again, it isn't that the world is as simple as Brett and John Roberts make it. It isn't. We need to root out race discrimination, and that sometimes will mean seeking out its victims and moving them forward. But this notion that we group people and then assign to them the attributes that they supposedly "statistically" have crosses the line. It's just a terrible way to talk about oppressed minorities, and it's a way of thinking that gets you to more oppression. It's the justification for all of the racist policing, all of the exclusions from employment, all the things that have held a lot of folks down in this world. And that's why there's an entirely proper taboo against it. It's not worth junking that taboo so that a few relatively privileged kids can get into a better college.
So, a limited regulation based on centuries long concerns that historians and others show is based on original understanding (if that matters), is tarred as some "banning of books" when the books are not banned. A particular means of payment is.
This sentence contains several inaccuracies. 1. The regulations are not limited. They are a huge part of college admissions and contain detailed preferences and procedures. 2. The regulations do not correlate with centuries long concerns. They draw lines based on what people are wanted in the entering class. In the case of Blacks, that correlates with those concerns. In the case of Asians, it doesn't. 3. Originalism supports preferences for Blacks. It doesn't get you the rest of the way.
"Your view conveniently rejects any solution at all to the problem of racism. We have a word for that."
Oh, I have a solution, and Roberts famously stated it. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” You don't end an evil by practicing it. That's how you perpetuate it, instead.
Brett, what is your plan for people who refuse to stop being is racist? Other than to wink and give them a pat on the back.
"Roberts' answer was flip and racist."
As I've remarked before, the left have actually gone so far in redefining "racism" that they'll declare anybody who refuses to racially discriminate "racist". Thanks for demonstrating this. "Brett, what is your plan for people who refuse to stop being is racist?" My plan is that, by refusing to perpetuate racism by forcing people to practice it, they will, in time, become few enough that we don't HAVE to do anything about them. Society survives having a small minority having irrational prejudices, they only cause problems if they're common.
My plan is that, by refusing to perpetuate racism by forcing people to practice it, they will, in time, become few enough that we don't HAVE to do anything about them. Society survives having a small minority having irrational prejudices, they only cause problems if they're common.
# posted by Blogger Brett : 1:07 PM What do you think we were doing up until the Civil War? And then again until the Civil Rights Act? And then some more after that? Maybe asking a racist piece of crap how to deal with racism wasn’t my greatest idea.
Yes, you've made that remark because the strategy of the Right is to accuse others of their own flaws. Projection all the way down.
And sure, racism will die out all on its own, notwithstanding the fact that we've waited 400 years for that to happen. And sorry all you victims -- suck it up and get over it.
Brett's comment, as it leaves "they" unclear, could be read to mean that the hope is that, by allowing racist policies to continue, the victims will diminish and become extinct.
Whether that is merely a misinterpretation, or a true, although unintentional on his part, we leave to others.
"And sure, racism will die out all on its own, notwithstanding the fact that we've waited 400 years for that to happen."
Wow, we spent 400 years refusing to practice racial discrimination, and banning any racial discrimination on the part of government or anybody entangled with it? News to me, I had no idea. "could be read to mean that the hope is that, by allowing racist policies to continue, the victims will diminish and become extinct." Yes, I suppose you could read it that way, if you were absolutely determined to find me evil, and didn't care what I'd actually written. Not otherwise. Wow, we spent 400 years refusing to practice racial discrimination, and banning any racial discrimination on the part of government or anybody entangled with it? News to me, I had no idea. # posted by Blogger Brett : 1:30 PM This comment by you is complete gibberish. We spend 400 years following your plan of not doing anything about racism. It didn’t work.
Mark: And sure, racism will die out all on its own, notwithstanding the fact that we've waited 400 years for that to happen. And sorry all you victims -- suck it up and get over it.
Racism will never die out. We are genetically hardwired to distrust the Other. The only remedy is to make racism socially unacceptable and unlawful with a damages for the discriminatee against the discriminator. Allowing any racial preferences undermines this remedy. Zero tolerance.
Zero tolerance.
# posted by Blogger Bart DePalma : 1:36 PM Coincidentally, that’s the GOP position towards kneeling during the anthem to protest racial injustice.
Notice the implicit assertion that many of our fellows, born and raised in this country, are "those others."
Racism will end when people stop looking at their fellow Americans as "others." One way this can be helped along is by making sure that all races and ethnicities are included in as many social venues as possible. Kinda like AA...
C2H5OH: Racism will end when people stop looking at their fellow Americans as "others."
Not going to happen. Humans are animals with a survival instinct to distrust those who are different and not part of the group. The best we can do is outlaw racial discrimination like we do violence, which reduces but does not eliminate violence. Supporting government racial discrimination defeats that remedy. Zero tolerance.
BD: Zero tolerance.
bb: Coincidentally, that’s the GOP position towards kneeling during the anthem to protest racial injustice. Switching the channel is the standard response to professional entertainers disrespecting the colors. See recent NBA ratings. It’s actually the GOP position for Black people doing any sort of protesting. Actually, Team Trump LOVES the past 90 days of Democrat governments allowing mostly white Marxists to run riot and burn down blue cities. CNN's Don Lemon finally caught on and started calling on the Marxist terrorists to stop "because it's showing up in the polling."
"In addition, the study found that AA did not harm white or Asian applicants, so the 25% drop for the rest provided no benefit
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Welcome to Lake Woebegon College, where everyone meets the selective criteria for admissions! Seriously, if that study really said that, it's one of the most intellectually dishonest pieces of garbage in history. This is like arguing that you have a 12 pack of beer, and can place 2 more cans in, and no cans have to come out." If you had bothered to read the link, it specifically says, "The study, released Friday, also found evidence that the affirmative action ban imposed by Proposition 209 did not significantly harm Asian American and white students denied admission to UC's most selective campuses. That's because they enrolled instead at universities of comparable high quality and earned similarly high earnings in the following years." College admissions are nothing like a pack of beer because there are lots of other colleges. In contrast, blacks and Latinos were harmed because, in contrast to the white and Asian students, "Many of them were "cascaded" down from top-rated campuses into less selective ones both in the UC system and elsewhere, such as the California State University system. That, in turn, led to a decline in the attainment of both undergraduate and graduate degrees, the study found."
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. 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