Repeal of race preference programs: EffectsonAsiansandpublicreactions

Tue Nov 28 05:50:48 PST 2006

I am curious about Mark's comments. Whether afirmative action programs
are good public policy or not seems to me to be exactly the question the
Court answered in Grutter/Gratz etc. The Justices certainly did not in
any real way examine the issue from text, history, or structure.
Individualized review good, automatic points bad, cannot come from the
14th Amendment. The Justices' different views on the public policy
issues involving affirmative action will, I suspect, dictate the future
of this issue in the Court, and thus I think directly raise
constitutional issues, though I must admit, I feel a bit queasy
mentioning this in response to Mark's comments.

Eric Segall
Professor of Law
Georgia State College of Law

>>> "Mark Tushnet" <mtushnet at law.harvard.edu> 11/28/06 6:27 AM >>>
I wonder what is "constitutional" about the direction this thread has
taken.
We know that affirmative action programs are not constitutionally
mandatory,
and we know from Grutter that some affirmative action programs are
constitutionally permissible.  Unless we're talking about whether a
particular policy conforms to Grutter's requirements, everything else is
simply a question of what good public policy is, about which we all have
our
views.

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138
ph:  617-496-4451 (office); 202-291-6352 (home); 202-374-9571 (mobile);
617-496-4866 (fax)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Greg Magarian
Sent: Tuesday, November 28, 2006 12:13 AM
To: VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
Subject: RE: Repeal of race preference programs:
EffectsonAsiansandpublicreactions

The continuous, statistically significant deficit that African-Americans
experience, relative to whites, in virtually all measures of
socio-economic well-being -- the most salient, for purposes of this
discussion, being representation (discounting the effects of affirmative
action) in student populations and the professions -- provides strong
evidence that historically rooted white privilege continues to have a
great influence on how we all live.  White privilege alone doesn't
necessarily justify affirmative action; one might still oppose the
practice based on stigma concerns, the conceptual difficulty of
identifying proper beneficiaries, or the distasteful nature of racial
distinctions (although, to be candid, those arguments don't persuade me,
and the last one always seems to come awkwardly packaged with calls to
ignore the effects of the history that makes racial distinctions so
distasteful).  But categorically denying the significance of white
privilege leaves "just deserts" as the only logical explanation for
racial disparities in socio-economic well-being, and that's a pretty
hard story to swallow.

Gregory P. Magarian
Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
(610) 519-7652
>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/27/06 11:36 PM >>>
Yvette Barksdale asks Rick:

     "Are you saying that you have not inherited any benefits from
the discrimination of the past?  Question - did your parents and
grandparents receive benefits? And, if so, did they transfer any of them
to you?   If the answer is yes - is it fair that you get to not only
keep it all, but leverage it into greater gains...."

    Well, I can't speak for Rick.  Perhaps one or more of his
distant ancestors died on the Union side in the Civil War, leaving their
infant children rather poor.  (That's probably true of millions of
Americans alive today.)  Did the effects of this dissipate enough over
the generations since the Civil War?  Did the effects of pre-War slavery
(as opposed to more recent Jim Crow) dissipate for blacks?  How exactly
are we to calculate that?

    Or perhaps, as I've heard many opponents of race discrimination
argue, race discrimination against blacks was economically bad for most
whites as well as for most blacks:  It yielded less of a pie to be split
up, so that even if whites got a larger share of the pie than was fair
-- which is to say they were hurt much less by race discrimination
against blacks than blacks were -- they got a lesser amount than they
would have but for race discrimination against blacks.  If Rick's
parents or grandparents suffered from the consequences of this effect,
then Rick actually derived net *costs* from the discrimination of the
past rather than benefits.  It's a common (and in my view quite
plausible) argument, after all:  Ending racism is good for all of us
(with a very few exceptions), including economically good; if that's so,
then it suggests that past racism was economically bad for all of us.

    I, on the other hand, did not inherit any benefits from the
discrimination against blacks in the U.S.  It's conceivable that I got
some benefits from 1975 on, if my parents somehow benefited from
post-1975 race discrimination in favor of whites.  But for reasons much
like the ones noted above, I could have suffered costs as well.  Plus I
suffered unknown costs from discrimination against whites (whether my
parents or me) past 1975.  Should I too be included as part of the
debtor race?

    My parents also suffered a considerable amount in the Soviet
Union because they were Jewish.  On the other hand, they also managed to
get out from the Soviet Union because they were Jewish, when non-Jews
(with few exceptions) weren't allowed to get out at all.  If we went
back to Russia today, should we be entitled to preferences on account of
our Jewishness?  Should we be discriminated against to compensate for
the unfair benefit that we got (and that we happily took advantage of)?

    Perhaps it's questions like this that lead many people to
conclude that either notions of racial guilt or entitlement, or notions
of individual entitlement or duty to disgorge ill-gotten benefits that
supposedly stem from one's race, should not legitimately be part of the
analysis.

    Eugene
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