AA (Which groups benefit?)
Bob Sheridan
bobsheridan at earthlink.net
Sun Nov 12 11:16:00 PST 2006
With respect, I don't accept that "reverse discrimination" is a myth, at
least not to the losing competitor for a slot at Yale, for a police or
fire job, or for a government contract, where the loss is based on
race. The point of having a constitutional right to equal treatment, or
at least treatment not based on racial or other invidious
discrimination, is that it is an individual right, meaning it can
rightfully be asserted by the individual who is victimized by the
discrimination, as Mr. Bakke was, for instance. The police or
firefighter denied promotion because of a racial point scoring system
has a righteous beef; the last thing s/he wants to hear is that it's
okay for you to be discriminated against because we're making up for
great-grandfather's mistakes. Great grandfather may have lived in
Ireland, making the irony even more stark.
I accept the military's argument that it needs minority group members in
the officer corps, and to obtain that, the colleges must recruit more
minority group members as students. The problem is that so far the main
way we seem to approach this issue is via affirmative action. This may
represent a distinct lack of creativity in education. Building remedial
programs for athletes seems at least to be creative.
During a discussion over the use of some expected charitable funds, a
black student suggested a program to help black law students perform
better, such as in writing. Why restrict it to black students? I
wondered out loud. Almost all law students could use help there. That
kind of ended the discussion, unfortunately.
If academia, or the nation, were challenged to come up with a different
program than AA, what would it be, I wonder?
We have SDOC's 25 years to think about it, less the time elapsed since
the UMich cases.
Surely we can do better. Perhaps the military could put a few
thoughtful people on it as a military imperative.
Bob S.
sfls
Paul Finkelman wrote:
> Bob Sheridan writes this:
>
>
> "How does a nation of 300 million people bring forward this group and
> that without at the same time relegating other groups which are more
> competitive for whatever reason including being the beneficiaries of
> previous invidious discrimination, without raising the reverse
> discrimination and stigma problems?"
>
> But mostly the "reverse dscrimination" a myth; perhaps affecting some
> jobs (mostly in the academy) where is might be very hard to prove; and
> in some civil service and union promotions. If someone does get into
> Texas Law School because of the "claim" of reverse discrimination then
> the person will probably get into a host of other good schools,
> including Houston which is state funded; the same is true for almost all
> admissions; and millions of people do not get into schools of their
> choice for lots of reasons, including height and weight (he is a good
> baseketball player, even a great one, but we need more height); ancestry
> (we hold x% of hte class fof legacies -- yes you have better grades and
> George H.W. Bush's young son George, but too bad, he gets into Yale, you
> have to go to NYU or Cornell or somewhere else) or geogrpahy (Yes your
> grades are better than the girl from way up North near the Oregon
> border, but we want geographic balanace in the freshman class and we
> aleady have a ton of kids from the Bay area). When I went to college
> New York State gave a regents scholarshop based on SAT scores, but the
> scholarships were given out county-by-county. I lived in the middle of
> nowhere way way North and the cutoff for the scholarship was much less
> for me coming out of Jefferson County than if I had been coming out of
> New York CIty of the SUburbs. I won the scholarship but I doubt I would
> have with the same score in a different county -- in other words,
> affirmative action (reverse discriminatin) for kids from mostly white
> rural counties.
>
> Furthermore, as the briefs in Grutter from former military officers and
> corporations show, various segments of society *need* more minorities
> because the jobs cannot be done as well by whites. The military
> understands that to function well with large numbers of black soldiers
> we need significant numbers of black officers. I am sure that Colin
> Powell was promoted above some white officers; but this was what the
> military needed.
>
> 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
>
>>>> Bob Sheridan <bobsheridan at earthlink.net> 11/12/06 1:46 AM >>>
>>>>
> I don't disagree with the historical data that Paul points out. The
> question is what to do about it. We have many ethnic groups in this
> country, some the victim of slavery and Jim Crow down to today, and
> others not up to job and academic speed for other reasons, from simple
> private prejudice to state action, to "other."
>
> How does one go about correcting this individual discrimination,
> widespread though it may be, based on group membership?
>
> Affirmative action seems to be the reigning answer and it comes with
> problems, such as the reverse discrimination argument which many find
> persuasive.
>
> How does a nation of 300 million people bring forward this group and
> that without at the same time relegating other groups which are more
> competitive for whatever reason including being the beneficiaries of
> previous invidious discrimination, without raising the reverse
> discrimination and stigma problems?
>
> Job training vouchers? More colleges and remedial programs? In this
> regard, the NYT ran an article recently about universities and athletic
> departments investing considerable bucks towards remedial education for
> athletes. Maybe that's a clue as to a model.
>
> Bob S.
> sfls
>
>
>
> Paul Finkelman wrote:
>
>> Affirmative Action as a matter of policy is based on the idea that
>>
> large
>
>> groups of minorities are shut out from the mainstream, unable to get
>> educations and jobs the way most Americans can; that they face
>> discrimination still. Look at the recent election. Tenn. elected a
>> Democratic governor and defeated a well know, articulate, experienced
>> Congressman with an unknown, boring mayor in the senate race. NO ONE
>> doubts that race was the issue; the Republicans over and over made it
>> an issue, accusing FOrd of being a member of hte CONgressional Black
>> Caucus; using the word black in ads over and over. This illustrates
>>
> the
>
>> way in which race is a major problem for the nation. AA is one way of
>> trying to overcome this problem.
>>
>> Slavery is only one of the issues. There are literally millions of
>> African Americans alive today who were forced to go to segregated
>> inferior schools; were unable to obtain high school or college degrees
>> and suffer accordingly
>>
>> Colleges have affirmative action for alums. Could George W. Bush
>>
> have
>
>> been admitting to Yale on his grades? Unlikely. As long as there
>>
> are
>
>> legacy admissions minorities will need affirmative action to counter a
>> policy that by definition excludes minorities because they could be
>> legacies. Similarly, because of segregation and the inability to
>>
> obtain
>
>> health care and decent food black men were unable to participate in
>> military service in WWII at the same rate as whites, and thus lacked
>> access to the GI Bill. We could come up with many other examples of
>> discriminiation.
>>
>> In admissions we know that success on standardized tests is affected
>>
> by
>
>> income, ability to go to Kaplan classes, quality of schools, etc.
>> Differential funding of schools (see San Antonio v. Rodrigues) is NOT
>> ancient history.
>>
>> We are hardly a "long way" from discrimination. Until we bring all
>> people into the mainstream economy we will need affirmative policies,
>> whatever we call them.
>>
>> 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
>>
>>
>>>>> Bob Sheridan <bobsheridan at earthlink.net> 11/11/06 9:23 PM >>>
>>>>>
>>>>>
>> Affirmative action is based on the notion that some groups deserve
>> special treatment in admissions, contracting and employment, based on
>> past discrimination. Ward Connerly, the former UC regent behind the
>> anti-affirmative initiatives in California, Michigan, and elsewhere
>> argues that this benefits the wrong people and punishes the wrong
>> people, because we are too far down the road, generationally speaking,
>>
>
>
>> since slavery.
>>
>> As David Bernstein observes, the further down the generations one
>>
> goes,
>
>> the less confined to the original group the descendants tend to choose
>>
>
>
>> their mates. As Connerly also observes in his book, people from
>> different groups can hardly keep their hands off one another.
>>
>> There may be times to note group membership, as when a person is
>> discriminated against unfairly, as in Plessy, when the Court
>> intentionally pretended to blind itself to the invidious
>>
> discrimination
>
>> by race that was going on, and in Brown, when the Court made its
>> correction.
>>
>> It is one thing to correct the wrongdoer, and another to condemn his
>> great-grandchildren for his conduct, deemed wrong by later
>>
> generations.
>
>> One aspect of the problem with antecedent discrimination is that for
>> purposes of AA it is deemed to travel down the line to today. Because
>>
>
>
>> great-grandfather and great-grandmother were enslaved, families broken
>>
>
>
>> up and sold down the river, this excuses some of the descendants today
>>
>
>
>> from forming stable family relationships and pursuing the sort of
>>
> higher
>
>> education that leads to Supreme Court clerkships, White House
>> internships, and other routes to nirvana in America.
>>
>> Since the enslavers of yesteryear were white, non-whites today should
>> receive preferences in hiring for fire and police jobs, and admissions
>>
>
>
>> to college. This overlooks that many of today's whites immigrated
>>
> after
>
>> the Civil War and can say, truthfully, "Not my doing, don't blame me."
>>
>> Another issue that I don't see being raised in this discussion is that
>>
>
>
>> when we think of the various groups which compose America
>>
> historically,
>
>> there are two types. There are the people from other groups than mine
>>
>
>
>> who I know well, and the rest of their group, which must be some form
>>
> of
>
>> a stereotype. I've read that Mexicans often don't pursue higher
>> education but that Jews do. Stereotype? Invidious stereotype? Some
>> element of truth? What do we do with this? Legislate based on
>> stereotypes? Whose stereotype? Isn't this a terrible form of
>> government paternalism?
>>
>> It seems to me that if a measure can rightfully be said to be a form
>>
> of
>
>> reverse discrimination, then it is, or ought to be, in legal trouble.
>>
>> The thought that I haven't yet been able to reconcile derives from a
>> post by Prof. Laycock in which he says this:
>>
>> "...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..."
>>
>> The thought this inspires is that in the most elite universities, some
>>
>
>
>> AA is required to diversify the student body, otherwise it will be
>> excessively drawn from the dominant culture, presumably mostly wealth
>> and white, or at least white, but this may be a huge and wrong
>> stereotype. Under the UMich case(s), some reverse discrimination by
>> race is okay.
>>
>> Justice O'Connor, in opting in favor of AA in university admissions,
>>
> did
>
>> so with a string attached. She expressed the wishful thinking that in
>>
> 25
>
>> years AA would no longer be necessary. This is the first
>>
> constitutional
>
>> right with a deadline on it, as far as I can recall. There must be
>> something wrong with such a right, she seems to suggest.
>>
>> Yet the military wishes not to have a troop corp of minorities and an
>> officer corp of whites. It's Vietnam experience with this proved
>> wanting. Since officers come from university ranks in times of
>> emergency, the military wants educated minorities from whom to draw.
>> This militates in favor of AA for minorities who have officer
>> potential. Presumably this lets out gays and wheel-chair bound
>> minorities.
>>
>> The choice, it seems, boils down to O'Conner's view, or Connerly's,
>>
> with
>
>> O'Connor wanting to have it both ways, some AA and some reverse
>> discrimination, but for a limited period, if all goes well.
>>
>> Since when has all gone well?
>>
>> Bob S.
>> sfls
>>
>>
>>
>> davidebernstein at aol.com wrote:
>>
>>
>>> 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
>>> 734-647-9713
>>>
>>>
>>>
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