"Affirmative action era is over, longtime foe says"

[Richard Friedman]

Ilya's points may explain why the growth of this movement has been 
relatively slow to date.  We'll see whether it now begins to pick up 
steam, and my sense is that when 58% of the voters of a state like 
Michigan oppose plans like ours then that gives others -- including 
legislators -- plenty of political cover to push in their own states 
for the same result.  My guess is that in10 years the landscape will 
be very different from what it is now.

States with constitutional initiative include, among others, Arizona, 
Arkansas, Florida, Illinois, Missouri, Nebraska, Ohio, Oklahoma, and 
Oregon.  I will happily assume that the leading public university in 
each of these states is less prestigious and less selective than the 
University of Michigan, but I would guess that with respect to each, 
or at least most, of them there are plenty of white kids who really 
want to get into that university, because it is the best one within 
their reach, don't get in, and believe that they were near the line 
and that but for affirmative action they would have had a better 
chance.  And, by the way, that 58% in Michigan includes a lot of 
folks who probably never gave a serious thought to U of M.

And yes, I know that the reaction to Goodridge has to date been more 
extensive than the reaction to Grutter, but that really restates the 
question.  The fact is that Grutter established rules that govern 
everybody nationwide, and one has to work pretty hard (I think) to 
see how a married couple in the midwest is threatened by a decision 
allowing same-sex couples in Massachusetts to marry.

Rich

At 11:09 PM 11/26/2006, Ilya Somin wrote:
>These are all worthwhile points, but I have a few disagreements.
>
>1. Political payoffs.
>
>In practice, opposing affirmative action has not proven to be a 
>political goldmine for conservative politicians, at least not in the 
>last 15 years or so. I suspect that the danger of being tarred as a 
>racist by the press, if that is your main issue is a part of it, as 
>also is the fact that polls show that the majority of people have 
>positive associations with the  term "affirmative action" (they 
>don't like the term "racial preferences," which is the wording used 
>in Prop 209 and the MCRI). It's possible that conservative 
>politicians are simply missing out on a valuable political 
>opportunity, but I suspect that they are making rational 
>calculations when they choose not to emphasize the issue. This may 
>explain why anti-AA politics has mostly taken the form of referenda 
>rather than legislation.
>
>2. I agree that many states have at least one somewhat selective 
>public university. But in those states where the selectivity and 
>prestige of the state university are relatively low, any AA policies 
>that they have are likely to be of lower saliency than in Michigan 
>or CA. It is no accident, to my mind, that the biggest AA fights 
>have been concentrated in states with high-prestige state 
>universities (Texas, CA, Michigan, Washington, etc.). There are only 
>about 6-8 states that have both high-prestige state universities and 
>referendum processes. And anti-AA referenda have already passed in a 
>significant proportion of them.
>
>3. There are indeed people who care deeply about AA. But Rich is 
>probably right to suppose that they are more common in university 
>settings and - I suspect - in states with high-prestige public universities.
>
>4. I'm not convinced that Grutter is higher-saliency than Goodridge. 
>Some 25-30 states have enacted anti-gay marriage amendments in just 
>the 3 years since Goodridge. Only 3-4 have enacted anti-AA 
>initiatives in the 10 years since Hopwood and Prop 209. Part of the 
>explanation is that support for gay marriage is weaker than support 
>for AA. But part of it is that the opposition to gay marriage is 
>stronger than opposition to AA and perhaps more widely and deeply 
>felt (especially when we take into account the many people who 
>support "affirmative action" even though they oppose "racial preferences").
>
>Ilya Somin
>Assistant Professor of Law
>George Mason University School of Law
>3301 Fairfax Dr.
>Arlington, VA 22201
>ph: 703-993-8069
>fax: 703-993-8202
>e-mail: isomin at gmu.edu
>Website: http://mason.gmu.edu/~isomin/
>SSRN Page: http://ssrn.com/author=333339
>
>
>----- Original Message -----
>From: "Richard D. Friedman" <rdfrdman at umich.edu>
>Date: Sunday, November 26, 2006 10:57 pm
>Subject: Re: "Affirmative action era is over, longtime foe says"
>
> > I'm persuaded in part, but only in part, by Ilya's explanations.
> >
> > 1.  Yes, the collective action problems are quite large.  But in
> > states that do have the initiative, the problems seem to be
> > overcome
> > with some regularity.  This issue seems to pose an opportunity for
> > an
> > ambitious right-wing political aspirant.
> >
> > 2.  My sense is that Ilya is right that higher education is the
> > more
> > salient area for most voters, but it seems to me that most states -
> > -
> > a lot of states at least -- have at least one major public
> > university
> > that is at least somewhat selective, and if they've been following
> > policies like our Grutter-approved one, then the issue would be
> > raised continuously.
> >
> > 3.  Well, if 24 states don't allow legislation or constitutional
> > amendments by initiative, that explains the lack of petition
> > drives
> > in about half the states -- but it still leaves open the
> > possibility
> > of such drives in the other half, and raises the alternative
> > question:  On an issue that seems to be a strong vote-getter
> > (Michigan is a pretty blue state, after all, and despite the
> > opposition of most of the elites in the state, MCRI passed
> > handily),
> > why are more legislatures not jumping in?  (Or will they be doing
> > so
> > soon enough?)
> >
> > 4.  My sense -- maybe distorted by being in a university setting --
> >
> > is that a lot of people do get emotionally involved on the subject
> > of
> > affirmative action, and though Grutter may have been particularly
> > salient in Michigan, it was one of the most closely watched
> > decisions
> > by the US Supreme Court in decades and so a lot more salient
> > throughout the nation than, say, Goodridge was outside Massachusetts.
> >
> > So I remain rather perplexed.
> >
> > Rich Friedman
> >
> > At 09:55 PM 11/26/2006, Ilya Somin wrote:
> > >I think there may be several explanations:
> > >
> > >1. There are significant collective action costs to organizing an
> > >initiative drive like this. Connerley has a preexisting
> > organization
> > >that is, to some extent, portable - thus cutting down on those costs.
> > >
> > >2. In the many states that don't have prestigious public
> > >universities, AA in higher education is not a big issue. It seems
> > to
> > >be the higher education AA rather than the less publicly
> > noticable
> > >AA in government contracting that drives the politics of these
> > issues.>
> > >3. 24 states don't have lawmaking by referendum. In those states,
> > >it's quite understandable taht there hasn't been an equivalent of
> > >Prop 209 or the MCRI.
> > >
> > >4. Most people don't give much thought to AA most of the time. In
> > >Michigan, the MCRI probably would not have happened were it not
> > for
> > >the galvanizing effect of the Gratz/Grutter litigation. Most
> > other
> > >states haven't had a similar high-profile event.
> > >
> > >IN sum, a Prop 209-like movement is only likely in states that 1)
> > >have initiative processes, 2) have selective, prestigious public
> > >universities, and 3) have some galvanizing event that focuses
> > public
> > >attention on the issue. It's not surprising, I think, that the
> > vast
> > >majority of states don't fall into this category.
> > >
> > >Ilya Somin
> > >Assistant Professor of Law
> > >George Mason University School of Law
> > >3301 Fairfax Dr.
> > >Arlington, VA 22201
> > >ph: 703-993-8069
> > >fax: 703-993-8202
> > >e-mail: isomin at gmu.edu
> > >Website: http://mason.gmu.edu/~isomin/
> > >SSRN Page: http://ssrn.com/author=333339
> > >
> > >
> > >I understand why Ward Connerly is a big asset to this movement,
> > but
> > >can someone explain why he seems to be so crucial?    It seems to
> > me
> > >that in each state there must be plenty of people who would like
> > to
> > >see similar measures adopted and who have sufficient
> > organizational
> > >and political skills to get the ball rolling.  Frankly -- as one
> > who
> > >voted in favor of the policy upheld in Grutter and opposed the
> > >Michigan amendment -- I'm surprised that there isn't momentum to
> > >follow the same path in 47 states.
> > >
> > >Rich Friedman
> > >
> > >At 04:33 PM 11/26/2006, Rick Duncan wrote:
> > >> From today's
> > >> <http://www.latimes.com/news/local/la-me-> 
> connerly26nov26,0,5468311.story?coll=la-home-local>LA
> > >> Times. Here is an excerpt:
> > >>
> > >>As Ward Connerly sees it, the demise of affirmative action in
> > >>America is fast approaching.
> > >>
> > >>Buoyed by the victory this month of the Michigan ballot measure
> > >>banning racial preferences in public education and hiring, the
> > >>former University of California regent is ready to take his
> > crusade
> > >>to the rest of the nation.
> > >>
> > >>Connerly talks enthusiastically of an "anti-affirmative action
> > wave
> > >>washing over America" that will wipe out the race-based
> > preferences
> > >>used for decades to help African Americans, Latinos and other
> > >>disadvantaged ethnic groups.
> > >>
> > >>"I think the end is at hand for affirmative action as we know
> > it," he says.
> > >>
> > >>For his next target, the conservative activist is considering
> > >>sponsoring a ballot measure in one or more states, including
> > >>Oregon, Nevada, Arizona, Utah, Missouri or South Dakota. "We
> > don't
> > >>have to go to every state if we can get a critical mass of seven
> > or
> > >>eight states," he says.
> > >>
> > >>I hope he adds Nebraska to the list.
> > >>
> > >>Cheers, Rick Duncan
> > >>
> > >>
> > >>Rick Duncan
> > >>Welpton Professor of Law
> > >>University of Nebraska College of Law
> > >>Lincoln, NE 68583-0902
> > >>
> > >>
> > >>"It's a funny thing about us human beings: not many of us doubt
> > >>God's existence and then start sinning. Most of us sin and then
> > >>start doubting His existence."  --J. Budziszewski (The Revenge
> > of Conscience)
> > >>
> > >>"Once again the ancient maxim is vindicated, that the perversion
> > of
> > >>the best is the worst." -- Id.
> > >>
> > >>
> > >>Everyone is raving about
> > >><http://us.rd.yahoo.com/evt=45083/*http://advision.webevents.yah 
> oo.com/mailbeta>the
> > >>all-new Yahoo! Mail beta.
> > >>_______________________________________________
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