AA (Which groups benefit?) (Corrected)

Sat Nov 11 14:48:13 PST 2006

Having written two articles about discrimination against the Chinese, I am well aware of the history.  But the African American community is overwhelmingly descended from individuals who were enslaved and then suffered through Jim Crow and associated evils.  The Chinese were subject to some pretty serious governmet discrimination and private violence, not least a series of pogroms in the West in 1885-86, but over 97% of Chinese Americans today are not only not descended from those who suffered this discrimination, they arrived after they were legally (albeit not totally) protected from even private discrimination.  And present levels of intermarriage, housing segregation, etc., don't show the same sort of effects of past discrimination as for African Americans.
That doesn't mean that one can't make a case for AA in some circumtances for Chinese Americans, but the analogy to both the history and present circumstances of African Americans is imprecise, to say the least, and the justifications often offered for AA for African Americans are less or not at all applicable to Chinese Americans.  For example, Doug Laycock wrote that "black kids and their parents have to be able to see that older black kids are being admitted to elite schools."  Is this a pressing issue among Americans of Chinese dissent?

-----Original Message-----
From: pfink at albanylaw.edu
To: davidebernstein at aol.com; conlawprof at lists.ucla.edu; laycockd at umich.edu
Sent: Sat, 11 Nov 2006 4:56 PM
Subject: Re: AA (Which groups benefit?) (Corrected)

Chinese were not allowed to attend school with whites in 15 or so states
until after 1954 (and really until the 1960s); they were not allowed to
marry whites in 17 or so states.  The court refused to take the 
mixed-marriage case, Naim v. Naim, in the 1950s.  It involved a Chinese
man who and a white woman.  The murder ofo Vincent Chin in Detroit a few
years ago reminds us of non-jure anti-Chinese discrimination.  THe fact
that Chinese immigrants could not become naturalized citizens until very
late (1961? 1945?) underscored the continuing federal discrimination
against Chinese.    And as for your numbers, do you include the large
Chinese-American population in what became the 50th state (Hawaii).  

Moreover, if the test is who was protected by the 1964 act then that
logic would apply to African Americans as well.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> <davidebernstein at aol.com> 11/11/06 4:10 PM >>>
The vast majority of Americans with Chinese ancestry have arrived since
the immigration laws were changed in 1965, and thus, unlike earlier
immigrant groups, have enjoyed the protections of the 1964 Civil Rights
Act.  If I'm remembering correctly, the Chinese-American population was 
under 100K before then.  According to Wikipedia, there are now over 3
million Chinese Americans.  There might be an argument for AA for them,
but it can't be de jure discrimination.

-----Original Message-----
From: pfink at albanylaw.edu
To: davidebernstein at aol.com; conlawprof at lists.ucla.edu;
laycockd at umich.edu
Sent: Sat, 11 Nov 2006 2:53 PM
Subject: Re: AA (Which groups benefit?) (Corrected)

Certainly  people of Chinese and Japanese ancestery and some Hispanic
Americans could argue for AA on the basis of past discrimination.  They
too were required to attend segregated schools; faced other types of
formal discrimination, even if theydid not have the heritage of slavery.

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> <davidebernstein at aol.com> 11/11/06 2:38 PM >>>
 The second to last sentence should read "(albeit generally Latin
American) heritage."

Also, if there was a program justified based on a rationale that didn't
apply to one of the groups that benefitted, would that mean that the
program was not "narrowly tailored" for 14th Amendment purposes (Cf.
Croson and the applicability of the Richmond program to Aleuts etc)

-----Original Message-----
From: davidebernstein at aol.com
To: laycockd at umich.edu; conlawprof at lists.ucla.edu
Sent: Sat, 11 Nov 2006 2:16 PM
Subject: AA (Which groups benefit?)

I find at least some of the rationales for affirmative action (in terms
of preferences) presented on this list  and elsewhere persuasive, both
constitutionally and policy-wise in some circumstances.  But many of
them are either primarily or exclusively applicable to the experience of
African Americans--a population subjected to slavery, Jim Crow, etc.,
and still highly segregated de facto from the white population.

To what extent can these rationales be applied to other groups who are
the beneficiaries of preferences, such as Asian Americans (who I believe
still qualify under some federal, state, and private programs, if not in
university admissions), or culturally and ethnically European
individuals with Spanish-speaking (albeit generally   If the Supreme
Court swapped the "diversity" rationale for one of these other
rationales, wouldn't AA as applied to other groups become suspect? 

-----Original Message-----
From: laycockd at umich.edu
To: conlawprof at lists.ucla.edu
Sent: Sat, 11 Nov 2006 10:52 AM
Subject: RE: Romer and Michigan

Mark Scarberry's post is a fair description of Powell's opinion in
Bakke, but it misreads O'Connor's opinion for the Court in Grutter. 
Earl Maltz's reference to the "Powell/O'Connor" theory implies the same
mistake.  
O'Connor starts with Powell's opinion in Bakke, and she uses his word,
diversity.  But by the time she gets done explaining it, it is a
completely different and vastly more relevant concept.  Diversity for
Powell was a First Amendment interest in diverse ideas, with just a
passing hint of an acknowledgement that ideas about race might be
especially important in this context.  From that starting point,
O'Connor progresses to overcoming stereotypes and learning to work with
students of other races, to the need for an officer corps that is both
excellent and diverse, to educating a leadership class for the next
generation, to demonstrating that the pathway to leadership is visibly
open to all Americans.  There's not much difference between that last
step and role models, although the most obvious reading of her language
is that black kids and their parents have to be able to see that older
black kids are being admitted to elite schools.  
For the nearly half the country in which minority populations are
approaching majority status, the need to educate a minority leadership
class at the highest levels is about as compelling as a state interest
can be.  Not that many politicians are capable of thinking that far
ahead.
O'Connor did not say, although she should have, that in selective
schools, affirmative action is an essential means of desegregation.  She
did not say, although the Thomas and Scalia dissents squarely posed the
issue, that affirmative action is important to the maintenance of high
academic standards in selective institutions.  The first response to the
end of affirmative action is an assault on the admission standards that
make it necessary.  We saw it in Texas and California, there's already
talk about it in Michigan, we heard it from Yvette on this list the
other day.  
Shameless plug:  I elaborate this broad range of reasons for affirmative
action, and how many of these reasons show up in Grutter, in The Broader
Case for Affirmative Action:  Desegregation, Academic Excellence, and
Future Leadership, 78 Tulane L. Rev. 1767 (2004).
Quoting "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>:

> As I noted earlier, the corrosive effect of under-representation of 
> racial minorities in the legal profession might in my view create a 
> compelling interest that would justify state law schools in engaging 
> in affirmative action. The social effects of the gap in other "facets 
> of the economy" might create similarly compelling interests with 
> regard to other kinds of higher education. But, as I also noted 
> earlier, the Supreme Court seemingly has ruled out of bounds such 
> kinds of interests, and instead has required us to focus on an 
> educational diversity rationale -- a rationale that seems to have 
> little to do with these gaps and that is highly unpersuasive as a 
> genuinely compelling interest that would justify racial 
> discrimination.
>
> Mark Scarberry
> Pepperdine
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of
matthewhpolsci at aol.com
> Sent: Fri 11/10/2006 10:37 PM
> To: emaltz at camden.rutgers.edu; zimmermi at shu.edu;
nebraskalawprof at yahoo.com
> Cc: conlawprof-bounces at lists.ucla.edu; CONLAWPROF at lists.ucla.edu
> Subject: Re: Romer and Michigan
>
>
> The question may be asked as to whether Professor Zimmer's answer 
> below is not correct.  Professor Maltz seems to say that the answer 
> is either mixed or irrelevant in 2006.
>
> Whichever view may be taken, there is a two part 2006 policy question.
>
> Part 1.  Is it now to be assumed that the demonstrable gap, in 
> virtually all facets of the economy, between blacks en bloc and 
> whites en bloc is (a) simply a permanent fact of life or is (b) 
> treatable by policy?
>
> Part 2.  How the empirical political theory (let us name it 
> 'judicio-political theory') argued in briefs and law reviews, and 
> pronounced in judges' holdings deal with the problem of "making and 
> maintaining commonwealths"?
>
>
> -----Original Message-----
> From: emaltz at camden.rutgers.edu
> To: zimmermi at shu.edu; nebraskalawprof at yahoo.com
> Cc: CONLAWPROF at lists.ucla.edu; conlawprof-bounces at lists.ucla.edu
> Sent: Fri, 10 Nov 2006 2:49 PM
> Subject: Re: Re: Romer and Michigan
>
>
> Equal protection jurisprudence has strayed so far from the original 
> understanding that asking what the Civil War Amendments were "about" 
> seems almost beside the point. However, for what its worth, the most 
> direct evidence on this issue comes from the debates over the 
> Fifteenth Amendment and the changes in the Naturalization law in the 
> early 1870's. Unfortunately, the evidence is somewhat conflicting. 
> With respect to the former, the drafters explicitly rejected language 
> referring specifically to blacks in favor of a more general 
> race-blind formulation. In the naturalization debate, by contrast, 
> they chose to single out immigrants from Africa specifically rather 
> than removing the racial limitation on naturalization more generally. 
> In both cases, the specific discussion focused not on affirmative 
> action, but rather on Chinese immigrants.
>
> At 03:26 PM 11/10/2006 -0500, Michael Zimmer wrote:
>
>> Rick gives the equal treatment answer for why race is different: 
>> "the big >difference between racial preferences and all these others 
>> is the >normative view that racial discrimination is always highly 
>> suspect." The >reason racial classifications are suspect is that 
>> they have been used >mostly to the disadvantage of racial 
>> minorities, not that they will very >often disadvantage the 
>> majority. I suppose it all goes back to first >Justice Harlan's 
>> dissent in Plessy. Rick picks out the phrase about >"color-blind" 
>> out of a paragraph in which subordination of the minority >race is 
>> the thrust. Whatever else the Civil War Amendments were about, >they 
>> were not about the risk of harm to the white majority. What was true 
>> >then, is true today.
>>
>> Michael J. Zimmer
>> Professor of Law
>> Seton Hall Law School
>> One Newark Center
>> Newark, NJ 07102
>> 973.642.8833
>> 973.642.8194 fax
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu 
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>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu 
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> To subscribe, unsubscribe, change options, or get password, see 
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>
> Please note that messages sent to this large list cannot be viewed as 
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> ________________________________
>
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