"Affirmative action era is over, longtime foe says"

Elizabeth Dale edale1 at bellsouth.net
Mon Nov 27 04:50:39 PST 2006


Well, the reason there has been no initiative in Florida is that Jeb Bush
undertook a pre-emptive strike. In place of affirmative action in either
education or contracting we have something called "One Florida" (the
government explanation is here:
http://www.myflorida.com/myflorida/government/governorinitiatives/one_florid
a/index.html) It was adopted to stop an initiative plan in its tracks (my
recollection is that this was in 2000, right before I got to UF).

In education, One Florida means that the top 20% of high school students are
guaranteed admission to one of the state universities, but not a particular
one. I'm less sure what the situation is with government contracting, but
you can find that out by following the link above.

As a practical matter, in Florida UF is the top school and we have had
recruitment problems since this was adopted. One way that we have dealt with
it has been to set up extended long term relations with minority high
schools as a recruitment tool, my understanding is that this works only so
well and our minority enrollments have been less than satisfying (they've
been up and down for the past six years). 

Our low income enrollment has also been less than satisfying, even after
this initiative (and some related aid programs for low income students) I
believe we got D on the recent report on minority and low income enrollment
among flagship schools. I'm not sure anyone has studied the dynamics of this
problem closely, my guess would be that it is a combination of our locale (a
suburb-like, largely upper middle class town with an isolated and poor
minority population surrounded by semi-rural agricultural areas, with
largely white populations), the pressures on the system of Bright Futures (a
guaranteed tuition payment for students who graduate from Florida high
schools with a certain GPA and SAT score and as a result flooded the system
with high achieving students who might otherwise have gone out of state),
and our desire to move up in the ranks of top public universities. Frankly,
our mission has been completely incoherent for the past five years, in large
part because of the competing pressures.


Elizabeth Dale
Associate Professor, US Legal History, Department of History, University of
Florida
 
Affiliate Professor, Legal History, Levin College of Law, University of
Florida
 
PO Box 117320
Gainesville, Florida 32611
edale at history.ufl.edu
http://plaza.ufl.edu/edale
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Ilya Somin
Sent: Monday, November 27, 2006 1:19 AM
To: Richard Friedman
Cc: conlawprof at lists.ucla.edu
Subject: Re: "Affirmative action era is over, longtime foe says"

A few quick points:

1. I cannot in this brief post analyze all of the states mentioned by Rich.
I suspect, however, that the reasons why they have not yet had anti-AA
initiatives are a combination of the following:

A. Many of them have state universities less prestigious and less selective
than California and Michigan. Surely this is true, for example, of Oklahoma,
Missouri, etc.

B. These schools and their policies are less visible in the national media
(which many people follow in preference to local media).

C. Several of these states (e.g. - Arizona) have very small African-American
populations and so don't engage in much AA on their behalf (since state
universities usually  target the percentage of a minority group in the state
population). AA preferences for Hispanics tend to be smaller and (at least
until recently) less politically visible than preferences for
African-Americans.

D. Ward Connerly and other national AA advocates have less interest in these
states than they do in Michigan, California and other more prominent and
visible states.

2. Most public opinion research on opposition to AA shows that it is not
primarily caused by immediate self-interest (that is - white people who
perceive themselves as especially likely to be disadvantaged by AA do not
tend to oppose it more than do other whites). Thus, I suspect that political
visibility of the state's AA preferences is the key variable and that in
turn varies with the prestige of the state's public university. 

3. Legally speaking, Grutter did not require any university to practice AA.
It merely said that some forms of AA are constitutionally permissible if
states want to enact them. By contrast, Goodridge did require the state of
Massachusetts to endorse gay marriage. Gay marriage opponents in other
states began to worry that the same thing might happen in their states.
These fears were in most cases greatly overblown, but the average voter is
not very good at estimating what types of legal developments are actually
likely. By contrast, Grutter, with its mixed outcome (especially paired with
Gratz) and lack of an imposed requirement, did not stoke as much fear in
opponents as Goodridge did. 

4. Rich may be right that the MCRI will be copied in many other states. At
the same time, similar predictions were made 10 years ago when Prop 209
passed in California, yet those predictions were (mostly) not fulfilled. Are
things different this time around? We'll just have to see.

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 Friedman <rdfrdman at umich.edu>
Date: Monday, November 27, 2006 1:00 am
Subject: Re: "Affirmative action era is over, longtime foe says"

> 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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