AA (Which groups benefit?)

davidebernstein at aol.com davidebernstein at aol.com
Sat Nov 11 16:11:08 PST 2006

 Just to be clear: I'm in favor of the continued flow of immigration, but I don't see any question that a short-term price of such immigration, if it's not restricted to the already well-off and well-educated, will be greater short-term inequality.
-----Original Message-----
From: davidebernstein at aol.com
To: laycockd at umich.edu
Cc: conlawprof at lists.ucla.edu
Sent: Sat, 11 Nov 2006 6:17 PM
Subject: Re: AA (Which groups benefit?)

Such projections are nonsense, and are a pet peeve of mine.  Among other things, they rely on the counterfactual notion that Hispanics are going to only marry other Hispanics.  If I remember correctly, the "intermarriage" rate of 3rd generation Hispanics is around 50%.  I hope that no one believes that Hispanics will, or should, engage solely in endogenous marriage, and I don't know how anyone with the slightest knowledge of statistics can create such "projections", unless they are perhaps applying some modern version of the one-drop rule, and assume that everyone with any Hispanic ancestry will be presumed "Hispanic" (in fact though from what I've seen, the relevant statisticians do simply assume that whites will marry whites, Hispanics Hispanics, etc.).  In Texas and in many other places by 2040 you will have a large percentage of people who identify themselves as "Americans" who have Mexican ancestry, along with German, Native American, Polis! h, Scottish, and so forth.  !
 Unfortunately, many on the Left and Right seem to both ignore the possibility of assimiliation to serve their own agendas; the Pat Buchananites want to scare whites with a vision of "minorities" ganging up on them, and the Left wants to argue for  the necessity of preferences.  
Aslo, the argument that groups should be preferred for college admissions etc because they run things sounds very much like the argument for why Jews and Catholics were discriminated against by the Protestant establishment for generations, and would be an equally good argument for discrimination in favor of whites in most states today.
That said, I can see the argument that AA could play a role in training future leaders of Mexican descent, though given the continual inflow of Spanish-speaking immigrants without much education even from back home,I doubt Doug will solve the "disproportionately poor and undereducated" problem without cutting off immigration.  But federal and other AA rules apply, for example, to a light-complexioned friend of mine in No. Va. who arrived in the U.S. from Uruguay when he was 12, and is the son of a wealthy doctor of European ethnicity--not to mention my friend's son, who is of one-quarter Jewish, one quarter Polish, half Uruguayan extraction.
-----Original Message-----
From: laycockd at umich.edu
To: davidebernstein at aol.com
Cc: conlawprof at lists.ucla.edu
Sent: Sat, 11 Nov 2006 5:38 PM
Subject: Re: AA (Which groups benefit?)

In 2040, the population of Texas is projected to be 59% Hispanic, 24% white, 9% black, 8% all other.  The Hispanic population will still be, on average, 12 years younger than the white population, so even apart from immigration, the Hispanic population will still be growing faster than the white population.  2040 is as far out as anyone has projected, but there is no reason to think Hispanic population growth will have peaked.
So yes, Texas has a compelling interest in affirmative action for Hispanics.  They are going to be running the state.  If that population continues to be disproportionately poor and undereducated, the whole state will suffer.
Quoting davidebernstein at aol.com:

> 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?

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215

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