Repeal of race preference programs: Effects
onAsiansandpublicreactions
Turner, Ronald
RTurner at Central.UH.edu
Mon Nov 27 23:05:25 PST 2006
For the record, Dr. King was a strong supporter of race-conscious
affirmative action policies and programs, as noted in Cass R. Sunstein,
True Lies, New Republic (Dec. 25, 1995) at 40, and as discussed in my
article The Dangers of Misappropriation: Misusing Martin Luther King,
Jr.'s Legacy to Prove the Colorblind Thesis, 2 Mich. J. Race & L. 101
(1996).
Ronald Turner
Alumnae Law Center Professor of Law
The University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
(713)743-2285
________________________________
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Tuesday, November 28, 2006 12:15 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Repeal of race preference programs: Effects
onAsiansandpublicreactions
Trevor: When I use the term "on the merits" I mean whatever
qualifications (not including racial characteristics) that educators
believe are relevant. If we were to redact race from applications, you
can look at GPAs, at test scores, at essays, at experience, at volunteer
activities, and at whatever else you think would make for an excellent
student. I would live with whatever resulted from such a process (even
though I might quibble about this or that qualification--I am not
personally a big fan of alumni and geographic preferences, for example).
I mean it the same way MLK meant it when he said he wished his children
to be judged on the content of their character, not on the color of
their skin. Me too!
But when a black child of two MDs is admitted and given a full
scholarship over a white child from a non-privileged home, because the
former is a member of a disadvantaged minority group, something is
rotten in the state of Allen.
Rick
Trevor Morrison <trevor-morrison at lawschool.cornell.edu> wrote:
To Rick and others who seem to be using the term: what,
exactly, does it mean to admit someone "on the merits"? As far as I can
tell, the term is not being used to mean "without regard to any unearned
advantages." So what does it mean?
Trevor W. Morrison
Associate Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page: http://ssrn.com/author=372569
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Rick Duncan
Sent: Tue 11/28/2006 12:46 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Repeal of race preference programs: Effects on
Asiansandpublicreactions
In response to Steve: Coincidentally, I am teaching the Michigan
cases this week, and on the blog I maintain for my class, I posted the
following, which attempts to respond to the issue that AA does not harm
students like Ms. Gratz:
Are Racial Preferences Benign? How About Treating Them as
Takings That Require Just Compensation?
Here is what I would like you to think about concerning our
class discussion of racial preferences, particularly as part of the
educational admission/financial aid process.
Some supporters of AA argue that using race as a "plus" is
benign in the sense that it helps some deserving students without
harming anyone else? They argue, for example, that Jennifer Gratz was
probably not denied a seat in the class at Michigan, because she was
only one of many white students whose applications for admission were
rejected.
How about a hypothetical to illustrate this issue!
So let's assume that an elite state law school has, say, 3500
applications for a first year class of 250. The school admits 180
students (including 5 minority applicants) with very high GPAs and LSATs
"on the merits," and 70 students with much lower academic credentials
who receive a substantial racial "plus" based upon their status as
minority applicants.
And lets say that 1000 white applicants with very good GPAs and
LSATs (lower than the 180 "merit" students, but quite a bit higher than
the 70 students who received the racial plus) are denied an offer of
admission.
Questions:
How many of the 1000 rejected students actually lost a seat in
the class?
How many of them believe they were unfairly denied a chance at a
seat in the class on the basis of their race?
Is this belief concerning unfair treatment reasonable? Why or
why not?
Is there some way that the state university could address the
real harms caused by AA (both the lost seats and the lost opportunity to
compete without regard to race) without sacrificing the racial diversity
that some believe is critical to the university's educational mission?
How about treating racial prefences as a kind of taking that
require just compensation? Here is an idea I posted to a conlaw
professors listserv:
I don't have a problem with the ends of racial diversity, just
with the means of using racial preferences to redistribute opportunities
from young adults of one race to young adults of another race.
Why should we single out a few young adults to pay for the costs
of a "compellingly" important social goal? Why shouldn't all of society
bear these costs in the form of taxes? So why not view AA as a taking
that requires just compensation. Here is how it might work in the
admissions area.
First, make admissions decisions on the basis of all relevant
factors without taking race into account (this might require redacting
admissions applications to prevent admissions committees from knowing
the race of applicants).
Now after you have your "on the merits" class, proceed to apply
the racial preferences by taking some seats away from the first admitted
class and awarding those seats on the basis of the racial preferences.
So lets say applicants 1-20 are chosen to be the sacrificial lambs whose
seats are taken and transferred to the minority applicants. Why not
treat this as a taking and pay applicants 1-20 some just compensation
(say, $10,000 to 20,000) for the lost educational opportunity. Is it not
far better to share the sacrifice among all the state's taxpayers, than
to impose the full cost of diversity on the few young adults who were
chosen on the basis of their race to give up the seat they had earned on
the merits?
Isn't this a less restrictive means, even if it ends up with a
rather steep price tag and the political costs of raising taxes to pay
the bill?
What do you think? Is this a less restrictive means of advancing
the goal of racial diversity in education without imposing racial harms
on innocent bystanders? Notice that it addresses both kinds of racial
harms discussed above. All students get an equal opportunity to be
admitted without regard to race under the first admissions process.
Students not admitted under the first step know that they were not
denied admission on the basis of race, so we no longer need to consider
their complaints. We know which students were harmed by the racial plus
factor, and we proceed to compensate them economically and send them on
their way to the school that is their second or third choice.
What are your thoughts?
Rick Duncan
Steven Jamar <stevenjamar at gmail.com> wrote:
There is a surreal aspect to all of this.
It seems to me that most whites don't accept the idea of
white
privilege or of structural racism or the advantage that
wealth gives
as a class, though they see it (even Rick sees it) when
the wealthy
get ahead in ways the less wealthy don't or where wealth
eases the
path at the very least.
It seems to me that most whites do have the simple gut
level feeling
and understanding that they themselves have done nothing
wrong and
so why should they be in anyway visited with the sins of
the prior
generations or of the whole class of white people?
It seems that that gut feeling gets catalyzed into
resentment when
some perceived slight has occurred, regardless of how
realistic or
rational that perception of actual harm is. (Gratz most
likely would
not have been admitted regardless of any racially aware
admissions
policy).
When we try to argue statistics and class against that
subjective
internal feeling, statistics and class and structural
racism loses
every time in the hearts and minds of those who have not
studied it
and indeed in the hearts and minds of some who have.
But, that does not make it any less real. The
disparities are real.
The wealth maldistribution is real. The number of black
lawyers
compared to the black population is grossly under
represented.
Some of us believe in transforming society through law
and policies
and actions based on groups and statistics. Some of us
believe that
we are utterly autonomous and Justice Thomas-like did it
all
ourselves. Most of us are somewhere in between. Like
O'Connor:
don't like it, but can't deny the lingering problems and
the need for
continuing efforts to transform society to include
everyone and to
give everyone an equal opportunity cradle to grave.
We are our brother's keeper.
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:stevenjamar at gmail.com
Washington, DC 20008 http://iipsj.com/SDJ/
"Nothing that is worth anything can be achieved in a
lifetime;
therefore we must be saved by hope."
Reinhold Neibuhr
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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.
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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.
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