Opinion on affirmative action

[Frank Cross]

Well, any good economist will tell you to choose revealed preferences
over expressed ones.  My impression is that virtually every organization
in American practices affirmative action on race, besides the courts.  Schools
clearly do.  Corporations clearly do.  The Democratic Party is explicit.
The Republican Party is implicit in its support (forget what they say,
look at what they do).  How likely is it that all of these entities, which
depend in varying degrees on public support, have it wrong, while the
courts have it right?


At 02:19 PM 8/1/2000 -0700, you wrote:
>              "" ""  And I certainly didn't aim to argue that the poll
>results or election results show that race preferences are wrong or that
>Adarand is right -- naturally, polls and elections cannot do this.
>   """" (especially since even with the 40% number, the remaining 60% would
>hardly all be in favor of race preferences).            If there is such
>evidence, I would love to see it -- but I don't think we've seen it yet.
>       """" decisions.
>  Sylvia Lazos writes:   "" on race preference decisions.
>
> Poll data""""  the response is much closer.   Researchers have also shown
>that if you somehow make the interviewee aware of the consequences of their
>vote (thereby taking it out of the abstract/symbolic realm) you will get
>different results.  So for example, if you ask, do you support English
>only, the response is affirmative, 2 to 1.  But if you ask, do you support
>English only laws, even though it may mean that some persons who do not
>speak English will be unable to vote and obtain government services, then
>the response is a virtual tie.
>
> There is reason to disagree over affirmative action.  But citing poll data
>is not persuasive.  Polls are manipulated, and because of that inferences
>drawn from polls are of limited value.
>
> Voting outcomes."" issues -- after being hammered with commercials that
>frame these issues at a real high plane of intellectual debate (eg, the
>Pete Wilson ads picturing Mexicans running for the border like rats)  --
>make decisions that are somehow  rational and that these outcomes reflect
>mainstream thinking?
>
> Political scientists spend a great deal of time telling us how civic
>dialogue in the context of elections can get distorted.  Lydia Chavez in
>The Color Bind: California's Battle to End Affirmative Action  (1998) makes
>a case that this occurred in California on the affirmative action
>referendum.  I conclude in my Ohio State Law Journal article, Judicial
>Review of Initiatives and Referendums in which Majorities Vote on
>Minorities' Citizenship  (yet another  example of shameless self promotion
>by a participant of this list)  that the likelihood of intergroup
>animosity  factoring into the outcome justifies a role for close judicial
>review.   While I do not agree with the blanket statement that on hot
>button race issues, like English only, affirmative action and Bilingual
>Ed,  majorities will vote according to their prejudices, I conclude, after
>studying the social science and political science studies, that
>majoritiess' vote on these issues is a mixed bag.  It includes ethnocentric
>thinking, racial attitudes, and just plain ol' disagreement.   Accordingly,
>results of initiatives are also of limited value in drawing inferences
>about what the civic community really thinks.
>
>"" to the current discussion, but not to leave you in suspense, I argue
>that courts should overturn initiatives in these kinds of cases when the
>results exclude a disfavored group from meaningful civic participation,
>which is how I interpret Evans v. Romer.]
>
> For me, the Supreme Court's performance in the race preferences cases
>represent the Court's: 1) general unwillingness to face the hard issues in
>this area (the sole exception being  yeah -- you know it -- Brown), or 2)
>fear of entering into racial controversies, a subject matter area in which
>lawyers and judges are not schooled.  It is not necessarily about ideology
>(although for some Justices it is).  The abundance of badly reasoned
>opinions in this area speak for themselves.
>
> Of course we can disagree, and I recognize that my thesis is
>controversial.  But can anyone defend Adarand v. Pena on the basis that it
>is well reasoned?
>
> And, for those who believe in following precedent because it provides
>coherence and predictability, if it can be shown that the Court is more apt
>to punt on difficult race relations cases rather than face the music, then
>shouldn't preference for following precedent be put aside in this area?
>
Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712