Today’s big case was Fisher v. University of Texas. It’s the affirmative action case. The case was decided 7-1 with Anthony Kennedy delivering the opinion of the Court’s majority in a blander fashion than I’m used to. The case is remarkable more for what it did not do than what it did: race-conscious affirmative action programs are still apparently consistent with the Fourteenth Amendment, at least potentially, and no further guidance on what can or cannot be a part of race-conscious affirmative action programs has been offered.
Elena Kagan did not participate in the case; she had, I presume, been involved with the case in some fashion during her tenure as Solicitor General. The sole dissenter was Justice Ruth Bader Ginsburg, and there were separate concurrences by Justices Scalia and Thomas.
And my more liberal Readers will surely be irritated with me: I find myself agreeing most with Clarence Thomas’ concurrence.
The PAI and Race
UT Austin is the flagship of the University of Texas and one of the most prestigious universities in the country, whether public or private.
Abigail Fisher, an American citizen who self-identifies as Caucasian, applied for admission to UT Austin in 2008. Hers was one of 29,501 applications, of which 12,843 (43.5%) were admitted, not including Ms. Fisher, and of those offered admission, 6,715 actually enrolled.
The admissions system under which Ms. Fisher’s application was considered is a two-dimensional analysis. On one axis is the student’s academic performance – basically high school grades multiplied by SAT scores. On the other axis is the student’s “personal achievement index,” abbreviated PAI. Variants of the PAI as an admissions factor date back through two previous generations of affirmative action litigation challenging UT’s admissions policies. Colleges within UT Austin (e.g, Engineering, Liberal Arts) consider admissions applications separately.
The PAI purports to measure “leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student’s background [such as] growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities … and the general socioeconomic condition of the student’s family.”
Also in play was a 2009 Texas law that grants automatic admission at any public state college to all students in the top 10% of their high school class. Implementation of the revised PAI described above and the top ten percent law raised African-American enrollment at UT Austin from 4.1% to 4.5% and Hispanic enrollment from 14.5% to 16.9%.
In the wake of a relatively recent Supreme Court decision called Grutter v. Bollinger (2003) 539 U.S. 306 which indicated that race could, itself, be one of many factors considered by UT, UT began again considering race as an explicit factor in the PAI. While it is not assigned a specific numeric factor, all parties agreed that race is a meaningful part of the PAI. The explicit goal of considering race is to create a more diverse student body. Ms. Fisher’s application in 2008 was considered in this regime. She was not admitted, and filed suit challenging the inclusion of race as a meaningful factor of the PAI.
Strict Scrutiny
Justice Kennedy’s opinion goes on for several pages about how race-conscious admissions regimes are examined under a standard called “strict scrutiny.” In law school, I was taught that application of this standard was pretty much a death knell for a governmental policy, that it was only theoretically possible for a governmental activity to survive the analysis. In practice, some governmental activity actually does pass this analysis.
Under this test, the plaintiff’s only burden is to demonstrate that a constitutional interest is implicated by the governmental activity. The strict scrutiny test places the burden on the government to offer a compelling reason for the governmental activity, and to demonstrate that the activity is narrowly-tailored to achieve that compelling objective with only minimal intrusion on the interest raised by the plaintiff.
So all Ms. Fisher had to do is indicate that there is a reasonable question that UT’s admissions policy affects the interest of racial equality. Which everyone agrees, it does. Race is explicitly considered in the new PAI as a meaningful factor. From there, the burden is on Texas to show that its consideration of race within the PAI is both aimed at achieving a compelling governmental interest and narrowly-tailored towards achieving that goal.
Fortunately for Texas, cases going back to Regents of the University of California v. Bakke (1978) 438 U.S. 265 have indicated that diversity within the student body is indeed a compelling state interest. This has been the law for a long time, and I can see the argument: making things like enrollment in public universities is inherently a part of the concept of equal protection of the laws (which is a compelling interest, no doubt), and having a diverse student body makes that right a meaningful one because only a diverse student body will be truly accepting of anyone who shows up to enroll.
So the question becomes whether the formulation of the PAI is narrowly-tailored to achieve the compelling interest of diversity in the student body. And that’s where the majority found a problem: the Fifth Circuit applied a less searching standard, resting upon the uncontested good faith of the UT faculty and administration in re-introducing race as a non-quantified but important factor into the PAI. Justice Kennedy’s majority opinion did not find one way or the other whether this would be permissible; it simply announced that under existing law, the proper level of scrutiny to apply would be strict scrutiny.
A Majority of Seven Wasn’t Enough
No one seems to question that this was not the level of scrutiny assigned by the Fifth Circuit below. But I am a bit annoyed that the Supreme Court chose to not conduct its own analysis further at this point. They punted the decision back down to the Fifth Circuit. However the Fifth Circuit decides, one or the other sides will appeal it, and it’ll come back up to the Supreme Court, which will apply the strict scrutiny standard afresh anyway. There seems to be no reason, at least not articulated in the opinion, why this could not have been done today.
Reading between the lines, I think I can glean out the real reason: while seven of eight Justices agree that the Fifth Circuit applied the wrong lens to the case, no more than four Justices can agree on the proper outcome. Three out of the seven Justices voting in today’s majority were dissenters in Grutter (Scalia, Kennedy, and Thomas) and Justice Thomas is explicit that he would have overruled Grutter had he been able to gather four other votes from amongst his colleagues to do so. So apparently, at least four of the remaining Justices (including the lone dissenter, Justice Ginsburg) think that Grutter is necessary to reach the result today.
So, other than agreeing that the wrong standard got applied, there was no majority on how the standard should have been applied. Lacking the ability to get to five votes on the core issue of whether the University of Texas’ plan is appropriate or not under the existing standards, the Court punted.
Thomas Concurrence: What is a “Compelling” Governmental Interest?
Personally, I have never agreed with the assumption by Justice Powell’s split-the-difference opinion in UC Regents v. Bakke that diversity within a public university’s student body is, inherently, a compelling governmental interest. And alone amongst the Justices of the Supreme Court, Clarence Thomas articulates exactly that opinion.
Perhaps unlike Justice Thomas, I’m open to the idea that diversity is, inherently, an “important” governmental interest, and more than ready to sign off on the idea that it’s a “legitimate” governmental interest. I’m a great deal more sympathetic to the idea that a wide variety of educational benefits flow from diversity: better participation from all students in a variety of intracurricular and extracurricular activities, more knowledge packed in to the grades the school dispenses, broader fields of study, more critical thought and challenging of opinion, greater social tolerance in the form of student friendships and romances across racial lines, and the list goes on and on. Diversity is a good thing.
But is it “compelling”?
“Compelling” to me means something that addresses a fundamental issue of the very existence of the government at all: safety and security, the proper functioning of the courts and law enforcement, the vindication of other rights of citizens. That doesn’t mean I don’t like diversity or don’t think the government should pursue it. It means if we didn’t have it, we would continue our existence as a people and the government would continue to function.
Justice Thomas applies a somewhat different definition of “compelling”: “…those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity'” against which it would even be possible to consider race as a factor that might be weighed on a narrowly-tailored basis. Everything else, to Thomas, stinks of the racist logic underlying segregation and slavery. The Fourteenth Amendment forbids state governments from making distinctions amongst people based on race. Period.
As much as I agree with Justice Ginsburg’s sharp disapproval of this last concept — I agree with her that the government cannot and ought not blind itself to both past and present racial tensions within our culture — I cannot find a way to disagree with Justice Thomas that diversity, inherently, is not compelling. A non-diverse student body is not ideal, of course, but survivable. A university with a substantially non-diverse student body would continue to execute its twin core functions of educating its students and producing academic and scientific research. Perhaps it would not do so as well as it would do with the benefit of a diverse student body (and, equally important, a diverse faculty). But it would continue to be a university in every meaningful sense of the word.
Justice Thomas finds two and only two cases in the Supreme Court’s history in which disparate racial classifications have survived strict scrutiny analysis. One of them, Korematsu v. United States (1944) 323 U. S. 214, stands as one of the most odious of decisions in the Court’s history. Korematsu, Readers will recall, affirmed by a 6-3 vote the decision of the Army to relocate Japanese-American citizens from (mainly) the Pacific Coast states to special camps inland throughout the United States for the bulk of World War II notwithstanding that there was no evidence that even a single such citizen was in the least bit disloyal or guilty of any sort of crime. The exigencies of war (read: panic after Pearl Harbor) justified the relocation.
The other, City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469, found in Justice Thomas’ estimation “a compelling interest in remedying past discrimination for which it is responsible” when there is a strong basis for finding that remedial action is necessary. Richmond v. J.A. Croson actually struck down a public contracting scheme that favored minority-owned businesses, on the basis that an insufficient showing of a need for such a program to remediate past discrimination had been made.
Thomas would seem to have some trouble with Richmond v. J.A. Croson absent his precise framing of its internal logic: if the government can use its power in at least some circumstances to redress past racial inequities that it had a hand in creating, then the University of Texas, too, might have such a power because the government of Texas has had a hand in creating racial inequities in the past. This does not, however, get back to the really powerful point in Thomas’ opinion: as great as diversity is (and I do think it’s great) it’s not a “compelling” governmental interest. And neither is the benefit to education which flow from it.
If it’s not the case that diversity is inherently a compelling governmental interest, then the University of Texas needs to find some other justification for its inclusion of race as an overt factor in its admissions criteria to articulate. And I think in the paragraph above, the only possible justification is articulated: the government, in the past, helped create, perpetuate, and enforce invidious and overtly racist laws. Therefore, the society and culture resulting from those laws is at least partially the government’s responsibility. Redress in the form of corrective action is a compelling interest and necessary to get to a world where race stops being important, a world we’re not living in just yet.
At that point, we get in to the question of how much diversity is necessary to reach that goal, and whether other kinds of at least facially race-neutral policies can get us there. Would the Ten Percent rule of Texas law be enough? Available data here show that adding race overtly back in to the PAI shifted the racial balance of the student body at UT Austin by about 3%. Is that enough to reach the “critical mass” of diversity needed to meaningfully (although obviously not completely) remedy past discrimination? Or does the apparently racially-neutral Ten Percent Rule get us far enough that the other dimensions of the program don’t really make that much difference?
That issue would become a question of fact for the trial court to address. Maybe Texas would fail in that part of the case the way the City of Richmond did. Either way, that becomes the battleground: framing the past racial discrimination perpetuated by the state, and how the state can best redress it. This where the Constitution requires the case be fought and the admissions program be justified. And while a lot of the other parts of Thomas’ opinion are not so well-reasoned or at least not backed up by authorities of appropriate legal force (he uses a lot of anecdotal and seemingly cherry-picked social science scholarship to back up his claim that the race-conscious admissions program either might or actually does harm minorities) on this point he’s exactly right.
I’d have voted to remand the matter back to the District Court, not the Fifth Circuit, for further findings of fact regarding the extent to which the state of Texas itself engaged in or supported racial discrimination (limited to the time after adoption of the Fourteenth Amendment because that’s when state discrimination became prohibited by the Equal Protections Clause), the effects of those legal actions by the state on the culture and the economy today, and the efficacy of UT’s admissions program (and others similar to it) in redressing those harmful effects of past state discrimination. If UT could show that its admissions program was narrowly-tailored to address the harms resulting from past discrimination, I would then vote to affirm it; if not, I would vote to void it to the extent that it considered race as an overt factor considered in a student’s admission application. Which is closer to Justice Thomas’ opinion than any of the other opinions articulated in this case.
If Clarence Thomas sincerely believes that racial diversity isn’t a compelling issue, he’ll resign. There’s no other reason he got that job.
Judge a man by the content of his words, Mike. Not his actions, or the actions that have been taken on his behalf, or the ancillary benefits that might accrue to him from people taking specific self-interested actions of their own, and least of all for the justifications he might provide for all those manifold types of actions that have shaped his destiny.
He didn’t build that.
Did Sotomayor get the job for reasons similar to Thomas?
At the time of her nomination, Sotomayor had been a judge for 17 years, including 11 on a Circuit Court. She was originally nominated to the federal bench by a Republican. Before that, she’d been a prosecutor for 5 years, and served with distinction on the boards of a variety of private and public organization.
At the time of his nomination, Thomas has been a Circuit Court for 18 months. He’s never served on the bench before. He’d done a few years in private practice, but mostly had executive and legislative branch jobs, first in Missouri and then at the Federal level, thanks to his patron John Danforth.
There’s no comparison other than their both being minorities.
Golly, how in the hell did Kagan get in there?
Because she was the only female Democrat they could find, of course.
She certainly doesn’t seem to have any relevant experience, if we define “relevant experience” narrowly enough to exclude Thomas.
OK, we’ll include Thomas’s law professorships and tenure as Solicitor General.
Oops.
Would you say that Thomas’s experience, what little he has, is worth about 15 cents?
An Ivy League law degree: 15 cents
A successful patron who’ll take you with him as he ascends: a million dollars
Being the only plausible candidate for the black seat on the Court: priceless
was Thomas any less qualified than William Rehnquist was at the time of his appointment? there was been plenty of justices who were no more qualified than Thomas.
Don’t forget G. Harrold Carswell.
There was really no other reason that Georgia farmboy walked the hills of Westport in his overalls, attending law school at Yale, so alienated from his classmates.
If people threaten to riot over some issue than would that make it a compelling gov interest to do something they wanted so they didn’t riot? That could be one way to take Thomas’ strict interpretation.
One more thing about Thomas. He likes to talk about how going to Yale was a mistake, because their affirmative action program made his degree worth “15 cents”. He doesn’t talk about how he owes his career in government to John Danforth, whom he met at (you guessed it) Yale.
Did he say AA made his Yale degree worth 15 cents??? If he said that than i’m sorry Thomas defenders, he is a pretty dim bulb on at least some things. Plenty of kids in Yale now, of all hues, think their degrees are worth something pretty good. And they are correct.
Ingratitude grates.
So does stupidity. Thomas could talk a few million other blacks, or white for that matter, his own age who would loved to suffer throgh having a Yale diploma. Heck it could make a great turnabout remake of Trading Places. Instead of the oppressed black man rising to the supreme court after being a Yalie, he could trade places with some white kid who went to Bi-Directional State and watch what happens
The interesting part is why his experience at Yale would color his later views more than his upbringing in Georgia.
I have no good answer for that.
Good point Will.
As does disingenuousness.
I’m largely in agreement. I suppose one could make an argument that in a democracy ensuring that no identifiable ethnic group lags socioeconomically as a group could be a compelling interest. I’d certainly listen to such an argument. But, agreed, it’s not obvious. Of course “compelling” interest is just a concept made up by the Court out of whole cloth, never filled in with any clarity, and without any clear touchstone in political theory outside of Amerixan constitutional law, so what is it really? Just a convenient artificial construct, perhaps–whatever we want it to be.
On the remand issue, I’m not too surprised, given the apparent absence of strict scrutiny arguments at the trial level, that the Court didn’t deal with it. But, pragmatic question here, is it normal to remand all the way back to the District Court instead of the Court whose decision they’re reviewing? The Circuit can, of course, further remand on down. Off the top of my head–which is not reliable since I stopped paying close attention to these things some years ago–this seems the normal practice. Am I remembering my judicial process inaccurately?
Of course “compelling” interest is just a concept made up by the Court out of whole cloth, never filled in with any clarity, and without any clear touchstone in political theory outside of Amerixan constitutional law, so what is it really? Just a convenient artificial construct, perhaps–whatever we want it to be.
Arbitrary (but not capricious) can still be useful, one might counter.
But I think those concepts have an external life, an understanding to which we can refer, to judge government action, in a way that “compelling government interest” does not.
The problem with the Republican/Conservative take on racism is that it willfully ignores what the Waren-era Supreme Court called “the badges and incidents of slavery”. The more popular term for this now is “Institutionalized racism.”
I am a firm believer that institutionalized racism exists. It is largely unconscious and that is what makes it very vexing and insidious. We see this in mandatory minimum sentences. We see this in the essay that Kazzy posted over the weekend. There was also this essay:
http://jamellebouie.net/blog/2013/1/11/what-does-it-mean-to-be-privileged
We have problems as a society when a guy knows that he can’t carry a TV down the street because of the color of his skin and police will assume he is a burglar. Also see anything ever written by TNC.
For better or for worse, we have a society where a college education is almost certainly necessary for upward mobility. It is not a guarantee but not having a college education seems to be damning. For much worse, we have a society that also, consciously or unconsciously, is a place where black men are statistically likely to spend time in prison. This is not because of anything inherently more dangerous about black men but because we have systemically denied them educational and economic opportunities and taught them that their best hopes for economic success are through sports, music, entertainment. We have allowed a narrow-minded Calvinist mindset to blind ourselves to the history of the African-American and develop a simplistic “If you can’t do the time…” attitude instead of questioning about whether many African-American men really have better options than joining a gang.
I don’t think that many conservative jurists who are skeptical about affirmative action are racist or bigots. I do think that many of them are naive about their kind of mantra about what will solve racism.
Affirmative Action might not be a great tool. It might be a horrible and blunt tool but it does seem to work a bit. It certainly works better than whatever the conservative jurists have in mind.
Anyway, there seems to be a lot of evidence that Fisher would not have gotten into UT-Austin anyway except perhaps with a bit of legacy help. She should have been kicked out for lack of standing. It was her decent but not great grades that kept her out of UT. Not affirmative action.
Watch the racists come up with my comment.
1) Your only racists can disagree with this statement line of argument is embarrassing for you.
2) I have never seen anyone of any color walk down the street with a TV in my entire life.
I have never seen anyone of any color walk down the street with a TV in my entire life.
Perhaps strangely, I have. Many times. Usually in a box.
I don’t think boxed TVs count. When people make this statement, they mean a used one carried free-hand.
I disagree.
I think “diversity,” so much as it is beneficial, is basically organic.
Diversity is everywhere.
That we would choose to view diversity in terms of race is indicative of our garishness and lack of understanding.
I don’t think AA has been a successful policy. After 40-some-odd yrs of it, the only answer in walking that path is more and more of the same, without end.
From what I see, the opposition comes in two forms: One is a fear for the loss of a crutch, and the other a resentment that doors are held for those who walk on crutches.
Neither is particularly persuasive.
I believe a hard phase-out date would be worthwhile.
It would begin to make us examine our objectives; defining metrics, and so forth.
That dialogue is not likely to take place with the fall-back substitute of AA in place; or even hovering over.
Once that failed experiment has been wiped away, there will come a time of hard questions. I see that as a fruitful time.
That said, I like the policy of the top 10% of all high schools in the state getting a guaranteed slot.
It appeals to me on some basic level.
The success of AA is seen in the growth of the black middle class. They have greatly profited from access to college and all that it offers as a road into the middle and upper class. It’s also worth noting that women also benefited from AA, this isn’t just about blacks although that does seem to be where the conversation always goes.
I can also see great value in the everybody in the top 10% gets in. My niece got a full ride, or close to it i think, to U of Florida for having good grades. Now she just had a baby so she obviously learned some sick lessons there. Well okay, she got a job, worked for years, got a Masters and good guy for a husband and they are almost sickeningly cute and upwardly mobile.But then there is Tebow, but at least i got a cute grand nephew
It would be appropriate that issues of race should take the forefront in discussions on AA where racial preferences (by whatever name) lies at the beginning of the dialogue.
The extent to which the growth of the black middle class is a result of AA is subject to scrutiny.
Denying admissions for minorities was common at one time. Merely removing that obstacle would have some foreseeable effect.
But still we betray our lack of subtlety in observing the most prominent of features among the most divergent of persons, and divining from those features multiple attributes.
It’s not as if we refuse to read the book.
It’s that we haven’t made it so far as to the chapter headings, because we are unable to flip open the cover.
if there is a problem with racist government employees then the solution is to fire them. we could for example set up a sting where over the course of a month a cop will come in contact with a white person and black person each carrying a TV if the police officer questions the black person but not the white person he will be summarily fired and lose his pension; once that starts happening you can be sure racism on the part of cops will come to and end. of course the left is in pocket of public employee unions so they will oppose any attempt to stop racism but punishing the racist, it’s much easier to punish the innocent than the guilty.
I think it’s necessary for both supporters and opponents of affirmative action to realize that there is not one “affirmative action,” but several approaches to acting affirmatively to address racial, ethnic (and gender, etc.) disparities.
One can support some ways of doing so (recruiting underrepresented populations, using split-the-difference rules, positing a “diversity” requirement) and still oppose other ways (e..g, quotas).
I do agree that there is a lot of institutionalized racism in the U.S. (And I would suggest to commentator “Dand” that institutionalization is not merely tolerance for individual racists in government, but rather a set of incentives that encourages people in government to act racistly (probably not a word, I know) or tolerate those who do or make less visible policies that have racist effects).
Still, it’s not quite as simple as saying, “racism is institutionalized. Therefore, ‘affirmative action’ is necessary” without at the same time admitting that “affirmative action” needs to be defined at least somewhat precisely.
(And I would suggest to commentator “Dand” that institutionalization is not merely tolerance for individual racists in government, but rather a set of incentives that encourages people in government to act racistly
provide me an example of an official government policy that is racist or a government agency that official tolerates racism. if none exists than the problem is government official violating policy by acting in a racist way.
Sentencing guidelines/requirements for drug possession.
while oppose the war on drugs how are Sentencing guidelines racist? one reason they were introduced was to reduce the disparity in sentencing between people convicted of the same crime.
The 2010 Fair Sentencing Act reduced the cocaine/crack disparity from 100:1 to 18:1. So, yes, it is better now, but the fact that we needed something called the “Fair Sentencing Act” indicates we had unfair sentencing, which was largely predicated along racial lines.
But because the law didn’t stipulate “Darkie drugs”, you’ll probably argue race wasn’t actually a factor.
the Anti-Drug Abuse Act of 1986 was passed with support of the Congressional Black Caucus if the law was racist why did they support it? in the late 80s blacks were calling for the government to do whatever it could to get crack off the street.
support for the war on drugs doesn’t fall on racial lines.
can you provide an example of disparate treatment rather than disparate impact?
Straws, grasped at so fiercely… it really is amazing to watch you work.
The anti-drug abuse act of 1986 was passed by congress with the support of the CBC. Wikipedia phrases it thusly: Some other authors, however, have pointed out that the Congressional Black Caucus backed the law, which they say implies that the law cannot be racist.
Which seems to misunderstand the dynamic somewhat.
I could easily see it argued, in 1986, that crack was doing far more damage to the black community than powder cocaine was doing to the cocaine kinda people in other parts of town. “Hooked after one puff!” was one of the arguments used. “Lives ruined” was another. You pretty much just have to look today at the commercials about Meth to see what was being said about crack… and how it wasn’t said about cocaine.
Or look back and see what they were saying about “bathtub gin”.
In any case, the argument that the disparity is rooted in racism strikes me as not *EXACTLY* correct. There’s some racism there, but it seems to me a different flavor than we assume it must have been. Years later, we can see a *HUGE* disparate impact… but, at the time, the assumption was that this was a problem that the government and law enforcement could fix through brute force.
Straws, grasped at so fiercely… it really is amazing to watch you work.
translation you’re unable to refute my points so instead you’ll make a snarky comment then run away
what straws is anything i said false?
do you want me to dig up the roll-call for the Anti-Drug Abuse Act of 1986? if the Anti-Drug Abuse Act of 1986 was intended why did most Black Congressmen vote for.
the reason for the sentencing disparity wasn’t racism it was that people in beverly hills didn’t give a shit if their movie star neighbors were using powder cocaine while people in the inner city were bothered by the fact that they’re neighbors were using Crack as a result penalties for crack became more severe.
Straws, grasped at so fiercely… it really is amazing to watch you work.
translation you’re unable to refute my points so instead you’ll make a snarky comment then run away
what straws is anything i said false?
do you want me to dig up the roll-call for the Anti-Drug Abuse Act of 1986? if the Anti-Drug Abuse Act of 1986 was intended why did most Black Congressmen vote for.
the reason for the sentencing disparity wasn’t racism it was that people in beverly hills didn’t give a shit if their movie star neighbors were using powder cocaine while people in the inner city were bothered by the fact that they’re neighbors were using Crack as a result penalties for crack became more severe.
JB,
I don’t think the laws were put in place do to racist motivation. But the results speak for themselves and are well known now.
The notion, which folks like dand so often put forth, is that anything short of white hoods and burning crosses can’t have nothing to do with race. I find that highly objectionable.
In any given “Baptists and Bootleggers” conversation, when you point out the sheer number of Bootleggers, the Baptists will show up and explain how very many people had the best of intentions.
For some reason, it’s very important to the Baptists that you acknowledge their intentions before changing the policy (rather than muddling them together with the bootleggers).
I’ve seen you reference the bootleggers/Baptists dynamic before, but it isn’t one I’m familiar with. Can you elaborate on it?
The biggest supporters of Alcohol Prohibition were Baptists and Bootleggers.
The Baptists supported Prohibition because, hey, people shouldn’t drink alcohol.
Bootleggers supported Prohibition because, hey, they made a lot of money smuggling booze to people who wanted to drink alcohol and were willing to pay a premium to do so.
So when someone stood up and said “We need to repeal Prohibition!”, the Baptists and the Bootleggers both stood up with one voice and said “NO! WHAT ABOUT THE CHILDREN! PEOPLE SHOULDN’T DRINK ALCOHOL! DO YOU WANT DRUNKARDS BEATING THEIR WIVES? DO YOU CARE ABOUT CHILDREN GOING HUNGRY BECAUSE THEIR PARENTS SPENT THE FOOD MONEY ON WHISKEY? HOW DARE YOU???” and so on.
The Baptists said these things because they believed them and had the best of intentions. The Bootleggers also said these things because, hey, it’s not like you’d listen to them if they said “but I’m making money hand over fist!” Their intentions were less than pure.
When it comes to the disparity between powder cocaine and crack, you can easily imagine someone sincerely arguing that crack does more damage to the bad side of the tracks than powder does to the good side of the tracks… and therefore we have to double down on law enforcement. You can imagine them arguing that with the best of intentions. Heck, the CBC supported the law.
The notion, which folks like dand so often put forth, is that anything short of white hoods and burning crosses can’t have nothing to do with race.
where have i said that? there can be cases where a facially neutral policy is motivated by racism what i object to is the notion that disparate impact and disparate outcomes are in and of themselves evidence of racism. i believe that the burden of proof is on the person alleging racism to show disparate intent not just disparate impact and disparate outcomes.
dand,
I think what’s wrong here is that you see disparate intent as a fireable offense (well and good). The liberals around here would like you to put disparate results on the “stuff that needs fixing” list. or at least Consider doing so (there will be times when it’s a bad idea).
Can you contemplate a disparate results case which you would like to fix? (My favorite involves “unions only letting family members into the union”… partially because the “fix” to it involved riots to get folks to pay attention)
Thanks, JB.
Could we possibly conclude that where the bootleggers and Baptists might have agreed was in using the power of the government to achieve their desired end?
With regards to crack, is it possible that both the CBC and other well intentioned advocates AND those motivated by racism were similarly inclined to think that the best way to respond to anti-social behavior among blacks was through the use of brute government force? An idea that they would not have applied similarly to anti-social behavior among whites?
Kazzy, the argument was that crack was doing damage to the black community that was far, far worse than the damage being done in other parts of town. Therefore, the punishment should be far, far worse. This was a *CRISIS*.
Raising the penalties for boardroom level drugs wasn’t on the radar. Why should it have been?
he liberals around here would like you to put disparate results on the “stuff that needs fixing” list.
blacks are more likely to play in the NBA and NFL than whites, does that mean those leagues discriminate against whites. i believe that every person should be treated as an individual not as a member of any group. i believe that demanding equal group outcomes rather than equal individual treatment is inherently unfair.
Can you contemplate a disparate results case which you would like to fix?
a support ending the war on drugs and ending gun control, both policies have the effect of putting large numbers of black people in prison.
(My favorite involves “unions only letting family members into the union”… partially because the “fix” to it involved riots to get folks to pay attention)
that seems like a bad policy regardless of race
My point is not that people looked at the black crackheads and the white cokeheads and said, “Jail for the former, rehab for the latter.”
What I’m asking is whether or not there is a possibility that we, whites and blacks alike, are inclined to think that the solutions for damage done by blacks is a heavy hand? And, if so, where the inclination might come from?
Is it possible that a similar scourge in the white community might have engendered a different response not necessarily because of “RACISM!” but because we subconsciously tend to respond differently to white scourges than black scourges?
That article I shared earlier in the week discussed this, namely via the way we tend to dehumanize black folks, which subsequently makes it easier to think, “Jail!” instead of, “Rehab!”
the issue is that poor and working class people of all races get more upset but their neighbors drug use than upper middle class and wealthy people. pushes drug enforcement are aimed not at strangers but at people you know. we’ve seen a similar panic in the last 10-15 years over meth, a drug used by lower class whites. the reason drugs used by the wealthy aren’t treated the same way is because nobody cares about the drug use of rich people.
Well, it’s tough. The laws were toughened because of the demographics of the perpetrators means that the laws were deliberately racist. The laws were toughened because of the devastation done to the community means that the laws were deliberately *NOT* racist but a reasonable response done as a way to protect those who needed the most protection.
Again, I’m not saying anyone or anything was racist. Nor am I denying that there were/are practical realities between crack and cocaine (and I don’t just mean the substances, but their usage patterns and whatnot) that would justify some of the discrepancy.
I’ve shared this before, but I once had a black parent tell me that I needed to be more firm with her son. Not just because it mirrored her home culture or because he was a “tough love” kid… but because as a black boy who would one day be a black young man, he was going to have less room for error. He needed a firmer sense of boundaries and limits and they didn’t want him to internalize a mindset of, “Well, it’s just a small mistake, no biggie,” which is an attitude I generally try to instill in my students. But for her son, moreso than the white and Asian students in the class, a small mistake could get him killed or arrested.
Pull that back a bit further and we can see identifiable trends in parenting styles between black and white parents, with black parents often being more authoritative. How much of this is related to the previously described sentiment? Not all of it, but surely some of it.
Now, go to the other side of the street, and look at what we know about “tribalism” and how there is a tendency, both natural and socialized, to see the actions of people who look like you with greater understanding and empathy than the same actions done by people who don’t. So now you have white people who see a young black male and think, “Danger!” when an identically dressed young white male might garner a, “Kids these days.”
So now, not because of any explicit racism but partly related to institutional racism (leading to the sentiment of the black parent described above) plus a host of other factors leading people, black and white alike, to thinking that hard lines and tough loves are what black troublemakers need.
Is this the driving force? No. But just like a snowball rolling down a hill, it can gain steam and combine with other forces and then you get a 100:1 disparity, even though I don’t think any individual would stand up and volunteer that independently as the best way to handle crack and cocaine.
Am I making any sense here?
No, no, absolutely. It’s just that there are a lot of weird dynamics at play and it’s hard to see which ones are essential and which ones are distractions. My conclusion tends to be that “intentions” are distractions given the whole Baptists/Bootleggers thing going on.
Look at what actually happens. It seems to me that we ought to be willing to say “maybe we should stop doubling down” a lot earlier than, traditionally, we have been. Apparently the current attitude is to move toward something closer to parity in sentencing laws, er, “guidelines”.
Heck, I’m someone who thinks that the best way to deal with the crack/powder sentencing disparity is “End The War On Drugs”. This position is, of course, unrealistic. (I’m also someone who thinks that “sentencing guidelines” is a breach of separation of powers but I’m crazy.)
Cool.
All I’m really trying to do is push back against the narrative that says, “Well, this group of black people support it, so there is no way in hell that race or racism played a factor.” To me, that is simplistic.
To your larger point, I both agree with ending the drug war and the implausibility of such advocacy. As a half-step, I’d like to see us move more towards rehab for end users and bigger penalties for the people at the top, and interim steps in between.
Yup
Loaning guidelines. NC. DoJ sued them for discriminatory practices. (yes, this is a few years ago. less than ten).
was that a case of banks discriminating against minorities or was complaints about the requirements(such as proof of income) having disparate impact?
and lending practices are an area where banks are dammed if they do and dammed if they don’t. for years leftists said that banks were to restrictive in their lending practices then banks got less restrictive and the same people blamed them fro people who used to be unqualified defaulting on their loans.
Thankfully YOU’RE not a leftist and will properly apply criticism… yes?
dand,
LIAR and NINJA loans are not what any sane soul was lobbying for.
end of story.
what were the complaints with regards to the lending practices, were the complaints about disparate impact or disparate treatment?
you can’t spend decades saying lending practices are too tight then complain when banks lossen them.
Thankfully YOU’RE not a leftist and will properly apply criticism… yes?
i think that banks should be able to use whatever standards so long as they are applied in a race neutral way.
Dand,
disparate treatment. Black people were literally told that they didn’t qualify for things that they did qualify for. And that was policy.
disparate treatment. Black people were literally told that they didn’t qualify for things that they did qualify for. And that was policy.
do you a link to the case? i find it strange that a bank would knowingly pass up a chance for profit. i would believe that an individual employee acted in a racist way.
dand,
man, you have no knowledge of loans at all. They were being told that they didn’t qualify for “low-profit to the banks” loans, and instead that they ought to get “high profit to the banks” loans.
man, you have no knowledge of loans at all. They were being told that they didn’t qualify for “low-profit to the banks” loans, and instead that they ought to get “high profit to the banks” loans.
was the banks policy to tell blacks and only blacks this or was it to tell everyone this and the blacks were more likely to fall for it. do you have link to the case?
http://www.fairhousingnc.org/2012/07/doj-settles-discrimination-suit-with-wells-fargo-bank-to-provide-175-million-in-relief/
… this is NOT the one I was talking about. But it’ll do, I’d say.
ok that seems problematic from the banks end but i have to ask if Wells Fargo was charging blacks more than the market rate why didn’t they go to another bank for a lower rate. or were all the banks in a conspiracy to charge blacks more?
Dand,
it’s an information game. you go to the bank you’ve got, you ask “hey, can I get a loan” and they say “sure, this one will fit your credit.”
Sometimes banks collude, but it’s by no means needed.
it’s an information game. you go to the bank you’ve got, you ask “hey, can I get a loan” and they say “sure, this one will fit your credit.”
Sometimes banks collude, but it’s by no means needed.
that could have been true 20 years ago but today there is so much information online that no one should pay more than the market rate unless they didn’t do their research.
dand,
Being an idiot ought not to mean that you get cheated or lied to. Or that you deserve to get cheated or lied to.
Being an idiot ought not to mean that you get cheated or lied to. Or that you deserve to get cheated or lied to.
Unfortunately the case was settled out of court so we’ll never know what happened. Was it a case of lying and cheating and discrimination or was it a case of typical negotiation tactics. What known is the blacks ended with worse deals than whites what we don’t know is how it happened. It could have been that the loan officers made different offers or were less willing to negotiate with blacks but it also could have been a case where the initial offers made were the same but whites were more likely to negotiate a lower rate or were more likely to be able to do so because they better informed.
If person A walks into bank and say “what interest rate can you give me” while person B says “I know from doing research online that the going rate for someone in my situation in X” then charging person A a higher rate isn’t fraud it good business.
dand,
violating your own corporate guidelines is rarely good business. it’s just a mess.
violating your own corporate guidelines is rarely good business. it’s just a mess.
Well Fargo gave employees discretion in the rates they quoted customers is it not possible the reason for this policy was so that they could charge the poorly informed more than the well informed.
I agree. It would violate ironclad laws of economics and thus would never happen.
Let’s take your example of the police officer who questions a black person for carrying a TV but does not or would not question a white person in similar circumstances. I suspect that you assume (and if you don’t assume, I ask you to stipulate for the sake of argument) that the number of police officers who would do this is non-zero.
Now, in such a situation, how would a person of color so questioned be able to get redress. He or she would have to somehow prove to the police officer’s boss that the the officer acted in a discriminatory fashion. How could that proved? I imagine the person would have to establish a pattern of conduct. How could that person establish a pattern in such a way as to convince the officer’s superiors, who in some scenarios might be much more sympathetic to an officer’s claim that he/she was just exercising his/her discretion.
Now, I am begging a question here that I believe is true but I don’t intend to prove in this comment, namely, that such discrimination is endemic enough in enough departments as to constitute a problem. In other words, I’m imagining something different from a case of “a few bad apples.”
Now, I’m also speaking in abstractions. You asked for a policy, and I offered a thought experiment of what institutionalized racism might look like. So here’s a list of policies that I believe can operate and have operated in a racially discriminatory fashion:
1. Mandatory minimums (as Kazzy said) coupled with a more robust focus on and surveillance of minority communities for violations.
2. The Fair Labor Standards Act. Initially, it excluded agricultural workers and domestic workers, who disproportionately were persons of color or women. (I think it’s since been expanded, however, but I use this example to illustrate how a policy can have discriminatory effects.)
3. Some state’s immigration laws, one reading of which permits police to arrest people if said people look like they might be immigrants (i.e., have darker colored skin).
4. Affirmative action, as envisioned by some of its opponents. I support affirmative action, or at least some forms of it (see the rest of my comment where I suggest we need to define it precisely), but I mention it because many who oppose AA are essentially making the argument that it represents institutionalized racism. I disagree strongly with that framing of the issue (because I believe “racism” implies power imbalances that are implicated in ways different from those implicated by most forms of AA that I am aware of).
5. “Stop and Frisk” policies in NYC, which, I have heard (I haven’t a cite), is used to target persons of color more than white persons.
6. Voter i.d. laws that appear to affect minorities more than others.
7. The practice, supposedly in evidence in Florida in 2000, of “mistakenly” informing black voters that they are listed on the rolls of felons and were therefore inelligible to vote.
You might object that some of these have as much to do with economics than purely with race–and you’d be right–but keep in mind that when people invoke institutional racism, part of the “institutional structures” implicated are those that keep already poor people poorer, and in the U.S., poverty is correlated strongly with being a person of color, even though poverty exists among all races.
Re: 5
I linked to something a little while back that showed that the numbers of S&Fs of black men outnumbered the total number of black men in the city. In other words, the average black man was S&Fed approximately 1.1 times. Now, they weren’t evenly distributed, obviously, but it certainly shows who the targets were.
Let’s take your example of the police officer who questions a black person for carrying a TV but does not or would not question a white person in similar circumstances. I suspect that you assume (and if you don’t assume, I ask you to stipulate for the sake of argument) that the number of police officers who would do this is non-zero.
Now, in such a situation, how would a person of color so questioned be able to get redress. He or she would have to somehow prove to the police officer’s boss that the the officer acted in a discriminatory fashion. How could that proved? I imagine the person would have to establish a pattern of conduct. How could that person establish a pattern in such a way as to convince the officer’s superiors, who in some scenarios might be much more sympathetic to an officer’s claim that he/she was just exercising his/her discretion.
i already provide i way to prove it by setting up stings and firing any officer who treats the black person different than the white person.
1. Mandatory minimums (as Kazzy said) coupled with a more robust focus on and surveillance of minority communities for violations.
is the difference in levels of surveillance because of racism or is it because people in those area care more about drug use than people in wealthier areas. like i said if you go to the inner city people want the police to “get the drug dealers off streets” while people in wealthy areas don’t care if their neighbors are using drugs.
2. The Fair Labor Standards Act. Initially, it excluded agricultural workers and domestic workers, who disproportionately were persons of color or women. (I think it’s since been expanded, however, but I use this example to illustrate how a policy can have discriminatory effects.)
was the intent racist or just the results?
3. Some state’s immigration laws, one reading of which permits police to arrest people if said people look like they might be immigrants (i.e., have darker colored skin).
that’s xenophobia not racism the Mexican immigrants most likely to be targeted more mostly white.
5. “Stop and Frisk” policies in NYC, which, I have heard (I haven’t a cite), is used to target persons of color more than white persons.
Stop and Frisk is a terrible program however
1)it’s implemented to support gun control laws that blacks strongly support. end gun control end stop and frisk
2) NYPD policy prohibits racial profiling if blacks are targeted it’s a case of cops violating policy not the policy itself. i support firing those cops and making it easier to fire racistg government employees.
6. Voter i.d. laws that appear to affect minorities more than others.
is that the intent or just the effect. i don’t believe that any policy that has a disparate impact is racist.
7. The practice, supposedly in evidence in Florida in 2000, of “mistakenly” informing black voters that they are listed on the rolls of felons and were therefore inelligible to vote.
is there any evidence a racist intent in those cases?
Dand:
“i already provide i way to prove it by setting up stings and firing any officer who treats the black person different than the white person.”
So all someone has to do is to set up a sting and fire any officer that sting catches? Maybe I’ll try that–in my spare time, of course–and see how many officers I catch. If you meant the police department ought to do it, then you have to consider the question of how many times alleged profiling takes place vs. how aggressive police departments are at operating these stings. I’m sure the police department doesn’t mind sting-ing its own officers on a regular basis.
Or maybe the feds can do it as a civil rights matter. That’s actually happened, as far as I can tell (although I doubt the feds in practice show a lot of concern for the everyday petty harassment….I imagine they’re after bigger fish). But if the feds have to come in, that suggests, to me, that things have gotten beyond the necessity of merely firing the bad people and descended into that state of affairs you’re suggesting (if I read you right) doesn’t exist: institutionalized racism.
“is the difference in levels of surveillance because of racism or is it because people in those area care more about drug use than people in wealthier areas. ”
Maybe at least in part, although I suspect another part of the dynamic is that white people also care a lot more about persons of color using drugs than about their fellow white persons. But if the end result is the incarceration of persons of color in such greater numbers than corresponding numbers of white persons, then that’s an instance of institutionalized discrimination. Intention has nothing necessarily to do with it
“was the intent racist or just the results?”
My understanding is that the intent was there with the FLSA. I have heard–although I admit I haven’t done extensive research here–that the limited reach of the FLSA (and social security act) was part of the series of compromises FDR had to make with southern democrats to ensure that the “wrong” people wouldn’t get benefits. However, my point is that FLSA had the effect it did, regardless of intent. I’m talking about institutionalized racism, and not individual racism. Perhaps we cannot separate the two so easily and always, but conceptually they’re distinct, and your original comment was about institutionalized racism.
“that’s xenophobia not racism the Mexican immigrants most likely to be targeted more mostly white.”
I’ll suggest that those likely to do the targeting are likely to conceive of the targeted as non-white, whatever their phenotype seems like to you. And yes, I can call it xenophobia and maybe even conceive of xenophobia absent of racialization, but xenophobia is also attendant with racialization, and I think xenophobes target Mexicans at least in part because of their darker skin color and supposedly inherited traits, although I’ll admit there might be a cultural divide (and economic motivations), too. Still, the key test is the effect, and not purely intent, although intent enters the picture here more than other examples.
“1)it’s implemented to support gun control laws that blacks strongly support. end gun control end stop and frisk
“2) NYPD policy prohibits racial profiling if blacks are targeted it’s a case of cops violating policy not the policy itself. i support firing those cops and making it easier to fire racistg government employees.”
For 2), I’ll refer you to my answer at the top. For 1), I’ll repeat, intention has nothing necessarily to do with whether the impact is disparate. I’ll also point out that you’re speaking of “blacks” as a monolithic group, with little consideration that individual black persons may have very different views on gun control, and even those who are gun restrictionists probably have different views on the efforts the state can take to enforce them against people.
“is that [the effect of voter i.d. laws] the intent or just the effect. i don’t believe that any policy that has a disparate impact is racist.”
Effect (and probably intent, but again, we’re talking about institutional racism). Your second sentence–and your repeated invocations of “intent”–suggests the basis of our disagreement. I think actions have have a racist effect without that effect being intended. I think if those actions are done according to established rules (institutions) that encourage those actions, then the actions and their effect are institutionalized actions that tend to target people because of their race. My term for that is institutionalized racism. If you stipulate to all that and to the claim that it is wrong, then our differences are only about word choice.
“is there any evidence a racist intent in those cases [Florida, 2000 election]?”
I don’t know, although I find it hard to believe that there was no intent. But again, we’re talking about effect vs. pure intention. If by virtue of having darker skin color you are statistically much more likely to be identified as a felon–whether by ill-will or simply the honest mistakes of a precinct captain–then your access to the franchise is limited in correlation with your skin color.
If you meant the police department ought to do it, then you have to consider the question of how many times alleged profiling takes place vs. how aggressive police departments are at operating these stings. I’m sure the police department doesn’t mind sting-ing its own officers on a regular basis.
It could be the department or another city agency, the reason it won’t happen is public employee unions are against (and public sector unions are the biggest defends of racist government employees). But if the left were serious about eliminating racist institutions they’d support sting regardless of what the police department wants.
<I<Maybe at least in part, although I suspect another part of the dynamic is that white people also care a lot more about persons of color using drugs than about their fellow white persons.
Maybe I’ve been around different white people than you but most white people I’ve been around don’t care on bit about anyone’s drug use. It’s not white people saying we need to get drug dealers off the street of inner city neighborhood X it’s the residents of the neighborhood itself. Among the people I know blacks are less likely to support legalizing of drugs than whites; several have claimed that legalization will “allow big business to profit from killing us”.
However, my point is that FLSA had the effect it did, regardless of intent. I’m talking about institutionalized racism, and not individual racism. Perhaps we cannot separate the two so easily and always, but conceptually they’re distinct, and your original comment was about institutionalized racism.
Are you saying that any law that on average effects one group more than another group is institutionalized discrimination? If so the only way to eliminate institutionalized racism is to become an anarchy.
Still, the key test is the effect, and not purely intent
so you’re saying that any policy that has disparate impact is racist? does this apply to all groups or just blacks?
I’ll repeat, intention has nothing necessarily to do with whether the impact is disparate.
So in other words when you said institutional racism you meant “desperate impact” if you had said that from the start I wouldn’t have objected but I don’t think that desperate impact is racism only desperate intent.
. I’ll also point out that you’re speaking of “blacks” as a monolithic group, with little consideration that individual black persons may have very different views on gun control
most polls i’ve seen sow overwhelming support for gun control among blacks(see the results of the recent congressional race in Chicago as evidence).
Effect (and probably intent, but again, we’re talking about institutional racism). Your second sentence–and your repeated invocations of “intent”–suggests the basis of our disagreement. I think actions have have a racist effect without that effect being intended. I think if those actions are done according to established rules (institutions) that encourage those actions, then the actions and their effect are institutionalized actions that tend to target people because of their race. My term for that is institutionalized racism.
So any policy that has a desperate impact on blacks is racism regardless of the intent. Are laws against murder institutionalized racism? Does this same standard apply to other form of bigotry as well? Since Jews are more likely to have high income then according to your definition the progressive income tax is a form of institutionalized anti-Semitism.
I was defining institutionalized racism as mean the official policies are motivated by racism as was the case in the Jim Crow south.
I’ll suggest that those likely to do the targeting are likely to conceive of the targeted as non-white, whatever their phenotype seems like to you. And yes, I can call it xenophobia and maybe even conceive of xenophobia absent of racialization, but xenophobia is also attendant with racialization, and I think xenophobes target Mexicans at least in part because of their darker skin color and supposedly inherited traits, although I’ll admit there might be a cultural divide (and economic motivations), too.
I think it’s the Spanish language that bothers people (or maybe just the perceived threat to English). Anti-Hispanic slurs are directed even at Spaniards who don’t look any different than other Europeans. And much darker skinned groups like Jamaicans don’t prompt the same reaction.
Well Dand, you’re persistent, and I’ll give you that much, and I’m pretty much through arguing, because I’m not a good arguer. But I do feel the need to clarify, and perhaps modify to meet your objections, my position.
I don’t think any disparate impact implies racism, but when the disparateness is so great and the rules are rigged so much to ensure a disparate outcome, then I think it is (institutionalized) racism.
I’ll retract my earlier insistence that intent ought to have no role in the determination of whether a set of practices counts as institutional racism. But I still believe that in such determinations (again, limiting our rules to something called “institutional racism”), intent takes a secondary role. I also think it’s conceptually possible for intent not to play a role–that some policies can be devised with non-racist intent but have a strongly race-specific (and harmful) consequences.
Now, to this point:
Laws against murder aren’t institutionalized racism, but a legal system in which a white person has a greater likelihood of getting manslaughter while a person of color has a greater likelihood of getting life imprisonment or the death penalty for very similar crimes would be an example of institutionalized racism. (I don’t have the empirical proof that such is the case, although I suspect it is the case. But regardless, my point is that if we stipulate the existence of such a system, then that system is institutionalized racism.)
The higher average per capita income among Jewish people in the U.S. (keep in mind that not all Jewish people are rich) does not make progressive taxation antisemitic (although here, as I noted above, I would partially retract my insistence that intent has nothing to do with it…..I can imagine a scenario where a progressive income tax be enacted in order to expropriate “the Jews who control the economy.”) However, the policies that shunted Jewish people into what were considered disreputable trades were part of a process that, ironically perhaps, enabled members of some Jewish cultures to do well eventually. But the policies themselves were, in my view, institutionalized racism.
Your reference to Jim Crow is a good one. That’s a good example of institutionalized racism and I’d be hard pressed to say that intent had nothing to do with its racist implications. And Jim Crow was probably worse than our war on (some people who use some) drugs as an institutionalized racist practice. (I say “probably worse” because as a white person who has never been caught up in the drug war net and has never been a target, nor has had ancestors who were targets, of Jim Crow styled laws, I’m not personally or affected.) But I’ll add two points to illustrate my position:
1. If Jim Crow is the worst (let’s assume it is, but keep in my caveat above), then that doesn’t mean that other policies cannot approach it in badness. And it’s a poor defense of any policy to say “at least it’s not as bad as Jim Crow.”
2. Even the proponents of Jim Crow claimed, often but not always, that these regulations were not racist. “Separate but equal” was based on the fiction that separate accommodations were equal (and I’m aware of at least one pre-Plessy case–a case heard before the Interstate Commerce Commission, but alas I don’t have a cite–in which a railroad was punished because it’s separate accommodations weren’t equal in quality). Many of the attempts to disfranchise blacks were facially race-neutral, such as literacy tests.
I hope this clarifies my position. But having clarified (I hope), I’m not confident I’ve convinced you. So be it. I stand where I stand and I’m through with the argument.
gun control also lead to a disproportionate number of black people in prison yet i don’t hear anyone claiming the democrats are racist for pushing it. it’s as if law that have a disproportionate effect on blacks are only racist when they aren’t pushed by the left.
To be perfectly honest, while that’s a legit worry, I think that ending the War on Drugs will solve the majority of those problems. No more “I smelled the distinct smell of marijuana in the hallway” warrantless searches. No more drug dealers having to pack heat to maintain turf.
How many guns does “Stop and Frisk” turn up? Because I’d wager that ending the WoD would result in fewer people feeling like they’d need to carry.
I support ending the war on drugs and think it disproportionately harms minorities, however I don’t think that means that it is racist or that the primary motivation for it is racism (not to say there aren’t any racists that support it). My problem is that everything that is said about the WOD is also true of gun control yet people don’t subject gun control to the same scrutiny are claim that the primary motivation is racism(very little of it is racism although racism was a factor in Nixon era gun control support). On the crack issue specifically after looking at the history I haven’t seen any evidence that racism was a motivating factor in getting it passed, if someone could provide evidence of racist intent I’d change my mind.
The primary purpose of “stop and frisk” is enforcement of Bloomberg’s gun laws, at times my reaction to the thing is Lincoln’s quote that “The best way to get a bad law repealed is to enforce it strictly” my only problem is yuppie leftist aren’t subjected to it enough.
“As much as I agree with Justice Ginsburg’s sharp disapproval of this last concept — I agree with her that the government cannot and ought not blind itself to both past and present racial tensions within our culture — I cannot find a way to disagree with Justice Thomas that diversity, inherently, is not compelling. A non-diverse student body is not ideal, of course, but survivable. A university with a substantially non-diverse student body would continue to execute its twin core functions of educating its students and producing academic and scientific research.”
What if you thought of this more as a totality issue? What if a decision banning affirmative action gutted the number of minorities who attend all public universities, in all states.
One reaction to this would be “let the chips fall where they may.” If minority enrollment declines, so be it, it will not drop to zero and indeed, whatever “critical mass” of different racial groups is needed, that number is difficult to know and harder to know whether we’re above or below it.
Another would be “No one has said anything about outreach.” There’s nothing wrong under even Thomas’ vision of the law with universities making appeals to targeted schools to spark interest in attending, there’s nothing wrong with finding role models and saying to young people, “You could be like her. And maybe we can help make that happen.”
Still another would be “There are reasonable proxies for race.” Economics comes immediately to mind, and in fact may be better than race if one of the missions we assign to a university is facilitating upward social mobility. So too is the fact that there are ethnically homogenous neighborhoods and so something like Texas’ top ten percent rule will inevitably result in a substantial amount of diversity and could even result in something close to a quota.
If diversity is a desirable but not compelling goal for an university to strive for, it seems to me that there are available ways to achieve it without using race as a quantified factor in admissions decisions.
I find it kind of ironic that economics will survive as a proxy for race. Largely because wealthy disparity/economics only gets strict scrutiny and I am one of those liberals who seethes a bit at how the conservatives used strict scrutiny to gut civil rights stuff.
Is wealth a traditionally suspect category when it comes to establishing degrees of scrutiny?
I’m not a lawyer, so I don’t know, but I had thought it was not, or at least not automatically so.
Wealth is in the rational basis category of scrutiny. This is also known as the “say anything and don’t giggle” category of scrutiny. Ironically the Supremes might be allowing for “class warfare”
New Dealer, thanks for the clarification.
Economics serve as a Damn Good proxy for “person whose ability may not be well-characterized by current data”.
“Still another would be “There are reasonable proxies for race.” Economics comes immediately to mind, and in fact may be better than race if one of the missions we assign to a university is facilitating upward social mobility.”
This assumes that they are actually interested in things like social mobility.
I recognize that colleges and K-12 schools aren’t one in the same, but working in independent K-12 schools gives me some insight.
There are few kids more sought after then wealthy kids of color. They allow the school to diversify racially while not necessarily diversifying along sometimes trickier lines: culture and class. There is also the added benefit that they won’t require aid, which is a financial decision. Many independent schools have an unwritten rule: You can be poor, you can be black, but you cannot be poor and black. At that point, you are two degrees away from “the norm” and that is simply seen as too much to overcome. So schools often look for families of color that otherwise fit the mold of the school. This allows them to put out a brochure that looks like a Benetton ad without actually needing to deal with cultural differences.
Don’t get me wrong… some schools take quite seriously their role as serving as agents of change when it comes to “diversity” issues. But far more do what they do because of perception issues and, to that effect, will only do what they need to do and no more.
This is why whenever there is a conversation about AA, I ask, “What is the purpose?” There have been many reasons offered to justify AA programs, which I personally think have varying degrees of validity. The reason for the program is going to impact how it is drawn up and enacted and how well it can hold up to challenges.
There was an interesting article from the Atlantic Cities about culture clashes in public schools in gentryfying neighborhoods. A lot of the gentryfyer-parents, who tend towards White or Asian-American, are not that fond of the traditional culture of the public schools in their neighborhoods and try to alter them to suit their cultural perceptions of what a school should be like. This means that they try to make the schools less “authoritarian” in culture and more “touchy-feely.” A lot of the poorer parents, who tend to be Hispanic or African-American, resent these changes and see them as no good for their kids. Overcoming this culture clash seems to be impossible.
I think Will linked to that on “Linky Friday” post and he and I briefly discussed it. A really fascinating article.
I’m slightly more optimistic… I don’t think it “impossible”, but I think it requires that all sides are committed towards coming together, making sacrifices, and working towards a common goal.
I have to admit that here is where I become somewhat uncharitable. Sort of. Except from a somewhat different direction. I’d be more amenable to affirmative action if it seemed to genuinely be considered a tool for mobility across the spectrum, rather than a way to provide a veneer of inclusiveness.
I mean, what’s the most obvious way to seem inclusive? To have people that look different. Because looks are easy to detect. So, the University of Oregon notices that they don’t have enough non-white (and non-Asian) faces around. So they aggressively recruit. This isn’t bad! But the result seems to me that my Cuban-American friends in high school get letters of inquiry from all across the nation. They have the name. One of them didn’t have dark skin, but he still had the name. Both got decent but not great grades, and both went to a good school and could boast a good (but not great) SAT score. And if either of them had accepted, UO gets to check off a box in their inclusiveness index. Yay!
Except that there are a lot of folks that need the help more. Some of them don’t check off the right boxes. Others do, but you know they’re in the Hispanic line behind my buddies, who check off that box just the same as a kid from the barrios but don’t pose a drag (or as much of a drag) on admissions statistics, which matters to things like USNWR ratings and overall prestige.
So a lot of the kids from the barrios end up going to colleges like my alma mater, which is one of the most diverse campuses in the entire country. And hey, I’m glad that they were there. It meant a lot to me in one of my classes when we had to break out into teams of five and, without even thinking about it, almost every team was exactly demographically distributed (though, there, we’re back to veneers) of one white peep, two Asian peeps, one black peep, and one Hispanic peep. I thought to myself, “My god, let this be the future.”
But… my school is not particularly well-regarded. Indeed, some make jokes (not just conservatives) about our school being the “International foods section of the Golden Corral”). And our admissions statistics are not great. We’re seen as blue collar and some degree of unserious.
It may be excessively cynical of me to believe that a lot of schools want to fill out the inclusiveness checkboxes by studiously avoiding a fate analogous to the reputation of my school (which my school itself is trying to get away from!). Lazy affirmative action programs, even if they have a hat-tip towards financial inclusion like UT’s does, often come across to me as a way to have their cake and eat it, too, without all that much regard to the stated mission.
I recognize that this isn’t exactly fair. And I know that you, Kazzy, are quite devoted inclusiveness. And I would suspect that ideologically, most affirmative action proponents are. But I see (perhaps rightly, perhaps wrongly) a divergence between this and how the programs often work in practice. I sort of understand why a lot of non-wealthy whites feel threatened by it in a way that I don’t. And I sort of resent efforts (not made here) to attribute that feeling to privilege, rather than the things they lack (the things that make them more vulnerable to unfavorable treatment in sloppy AA programs than I ever was).
If more of these concerns were addressed, with a greater emphasis on class (not just income, but poverty rates within their neighborhood, and so on), then I would actually become more amenable to race being considered a factor in inclusion. But I see us as being sufficiently far from genuine efforts that I find myself on the other side of the debate (if softly so), since around 2008 when I switched.
(There are more arguments, pro and con, than I am presenting here. I may be writing another post on the subject soon. But I wanted to get this out there in case I don’t.)
Hmmm… I think we’re pretty much in full agreement here? Yes? I hope so… because I like a lot of what you wrote.
Regarding ideology of supporters versus how it works in reality… I see this all the time. I’ll meet with my Head of School, who talks a big game on diversity, and we’ll go in all, “Yay, diversity!” and then I’ll say, “Why aren’t we recruiting in this lower- and middle-class towns with large populations of color that are upwardly motivated?” and she’ll say, “We need more upper-class black families or the upper-class white families will get mad,” and then we’ll say, “Yay, diversity,” again but half-heartedly and without the exclamation point. And then I look at the school brochure and we look like we’re the UN and then I look at our awards ceremony and it looks like “Dead Poet’s Society” and I ask if anyone else notices and no one does.
And then I wonder… “What’s a Golden Corral?”
A tad more seriously… I would say that I agree with diversifying our schools, for a number of reasons; I’m not sure that I’ve seen a codified program, be it AA or otherwise, that I can fully get behind.
Much like Bill O’Reilly, I think that AA should be based on class, not race. The children of Cliff and Clair Huxtable do NOT need AA.
However, this would expose the dirty secret of liberals: they HATE poor white people. So by giving AA on the basis of race instead of class, they can insure that poor NAMs get the help they need, and if a few who don’t need it still get it, then thems the breaks.
“The children of Cliff and Clair Huxtable do NOT need AA.”
It’s a good thing they have those light up neon signs around their necks at all times identifying themselves as such so no one thinks they’re just a regular black kid and stops-and-frisks them or follows them through a gated community or shoots them when they take their wallet out of their pocket.
The children of Cliff and Clair Huxtable do NOT need AA.
Of course not. They’re fictional characters.
I think that AA should be based on class, not race. […] However, this would expose the dirty secret of liberals: they HATE poor white people.
You’d do well in class-based AA, since you display none.
@MikeSchilling 243am
-_- If it makes you feel better for me to use an actual person, the real-life children of Bill Cosby don’t need AA.
@MikeSchilling 246am
1) You are using argumentum ad hominem, which is intellectually dishonest.
2) You never actually stated I was wrong.
You are using argumentum ad hominem
Look up what ad hominem means and stop misusing it.
You never actually stated I was wrong.
OK. Liberals don’t hate poor white people. Also, Obama is not a Muslim and Hillary did not kill Vince Foster. Any other questions?
@Mike Schilling 3:21 am
Yawn
I didn’t realize that Southern Tech wasn’t well regarded. Maybe it is because it fares poorly compared to the other school in town.
The tangential issue in this case is the role of College as Gatekeeper. Fisher knew full-well that graduating from UTA would mean something completely different than graduating from UTEP. Would she have gotten a better education at UTA? Who knows? But everyone will assume she would have. Few people actually care HOW you did in college, except graduate schools. I don’t think any colleges put your class rank on your transcript, just your GPA, which is almost a meaningless number.
It is scary that your performance between 14 and 18 determines so much. Late bloomers need not apply.
Nevertheless, it is tough to sympathize with someone who scored an 1180 on her SAT. She should consider herself lucky LSU accepted her.
For those who think that colleges are independent institutions that should set their own policies, remember: 1) UTA is a public school 2) Most private schools only survive because of Federally Guaranteed Student Loans. Therefore they need to be responsive to the public in these manners.
Full disclosure: Despite my handle, I am not a Rutgers graduate; I am a graduate of one of NJ’s directional colleges.
Scarlet,
Sotech’s reputation is a lot better than it used to be. In part because it’s gradually moving away from the sort of admissions that I describe.
LSU isn’t actually all that selective. Their ACT/SAT admission numbers are pretty comparable to (though slightly better than) Sotech’s. Their class rankings are better, but interestingly enough we turn away a greater percentage of applicants.
As an aside, UT-Austin is not UTA. UTA is the University of Texas at Arlington, the new proud members of the Sun Belt Conference. UT-Austin is just UT. Except to Tennesseans, who that pisses off.
You’ll sometimes see the flagship campus of the University of Tennessee as “UTK.” But Tennesseans presume when speaking with one another that “UT” means the school in Knoxville, not the one in Austin, which is known as “Texas.” Unlike the University of Texas as described here, satellite campuses of the University of Tennessee are referred to with the full name of the city, e.g., “UT Martin.”
@Trumwill
D’oh. I was wondering why UTA sounded right. It turns out I had heard it applied to the other school.
ScaretNumber regrets the error.
As an aside, I find it odd that there is both a UTA and a UTD. Maybe their programs don’t overlap.
That’s more to my way of thinking; but I think Race is really more or less a “reasonable proxy” for some of those other “Proxies.”
The issue isn’t whether discrimination exists.
It’s whether AA is the appropriate vehicle for righting the problem.
Housing, school funding, rehab programs
Right off the top of my head, I can think of a number of things that might have greater impact than AA.
That said, I think race & gender are pretty much arbitrary in most cases once you dig a littel deeper.
I’m not sure if Economics does form a reasonable proxy for race. Ta-Nehisi Coates is worth reading on the topic.
The whole series is worth reading in this context, this, a follow-up post, and there’s a post on out-of-wedlock births. But the money quote in this post (supported, too):
Economics as a filter, if it’s just household economics, is not going to pick that up.
I’ll add to Coates’s observation the possibility that even a relatively affluent person of color might still face discrimination based on his or her race. That, along with Coates’s argument about segregation, is one of the reasons why I’m still in favor of some form of race-based AA in addition to economics-based AA.
Pierre,
The argument for AA for colleges is that SAT scores were not giving an accurate representation of the intelligence and ability of black kids, and that they’d do better than suspected in college.
I do not think that argument really carries much weight when the discrimination one faces is “can’t walk into certain neighborhoods without wearing a tie” (or can’t walk around own neighborhood after dark for fear of police scrutiny). Perhaps there are ways to compensate someone for this type of segregation… but I’m not certain there’s a real argument to do it in education.
If I get around to my AA post, TNC will be a part of it. He makes a very good case that income is not a good proxy. But then he lists other things that can be used, in addition to income (like neighborhood income, schools attended, etc.).
I hope you do get around to it, Will. I’ll look forward to reading it.
The majority of poor people in this country are white. Substituting socio-economic status for race will probably be a boon to poor white kids but unintentionally hurt people of color regardless of their economic status.
Since you’re (somewhat) in agreement with Thomas, do you think the issue of slavery prior to the start of the civil war constituted a compelling interest according to Thomas’s definition? That is, if the “threat of violence and anarchy” (etc etc) is the only legitimate compelling interest, then would support you (or Thomas?) agree with a judgment that denied slavery presented a compelling government interest?
I know the example is inextricably linked to violence, but maybe that’s part of the point.
Eg, suppose that anti-abortionists decided to engage in extreme violence to achieve their ends, threatening the stability of government to the degree that anarchy was a legitimate worry. (Remember, I said “suppose”!) In what sense would that constitute a compelling government interest wrt abortion legislation?
Ie: a compelling interest to change the law? A compelling interest to merely i>render a judgment on a particular case?
There have been people who have suggested that blasphemy be made illegal.
Remember the early hours after Benghazi when “The Innocence Of Muslims” was considered a relevant topic?
To what extent should we request that people engage in prior restraint when it comes to insulting Islam?
It seems to me the threat of violence and anarchy is a very limiting, opportunistic, and double-edged criterion by which to judge what constitutes a compelling government interest.
I depart from Thomas in my definition of “compelling.” And if you read Thomas’ concurrence very closely, you’ll see he doesn’t actually define “compelling” as only things directly related to security whether that be on the national or personal scale. The City of Richmond case involved public works contracts, for instance, although I’m not sure I would have found a compelling interest there either, particularly under the standard I try on for size in the OP.
Justice Thomas might very well respond to your question by saying that prior to 1865, the Constitution did not prohibit slavery but instead countenanced it, and prior to 1868, the Constitution did not purport to impose the requirement of equal protection of laws on the several states. Therefore, before the civil war, no, slavery did not present a compelling interest.
I would say that slavery is antithetical to the very notion of a free people and bending the law to support it seems a perversion staining the legacy of many otherwise bright and noble minds, both political and legal, from early in our nation’s history. For those who conflated slavery with property rights, and for those who insisted slavery (and later segregation) was necessary to maintain the public order, some powerful rationalization had to be going on.
I like to think that had I been on the pre-Civil War Court, I would have stood up to Roger Taney and found the Fugitive Slave Law unconstitutional. I would have found that the Fifth Amendment’s prohibition against the Federal government depriving anyone of liberty without due process of law at least partially overruled the Fugitive Slave Clause of Article IV, Section 2, and that would leave with respect to the issue of slaves escaping to free states, free territories, or foreign nations banning slavery, the pre-revolutionary rule of Somerset v. Stewart (1772) 98 ER 499.
That last paragraph is pretty clever (in a good way). I hadn’t thought of the 5th as an “amendment” that potentially overruled something already in the constitution, even though it is, of course, an amendment.
Thanks, Burt. I think I”m seeing some of the distinctions more clearly now. Your agreement with his opinion rests primarily on the notion that diversity isn’t a compelling government interest independently of Thomas’ particular view of what constitutes a compelling government interest. Thanks.
Oh, and when I mentioned Thomas’ views of slavery, I was wondering what his current judgment of those actions would be, not what his view would have been if he were transported back in time to sit on the court with Taney. That’s a weird counterfactual, to be sure.
I get as many creep-outs thinking about that as I do thinking of Thomas sitting alongside Hissing James McReynolds (whose seat is currently held by Justice Sotomayor).
“Since you’re (somewhat) in agreement with Thomas, do you think the issue of slavery prior to the start of the civil war constituted a compelling interest according to Thomas’s definition?”
Do you think the issue of women’s suffrage prior to the early 20th century constitutes a compelling interest? Should modern women voters get extra votes to make up for the historical limits on their voting ability — or, rather, should men’s votes be discounted in order to produce a voting body of desirable diversity?
It remains that there is a federal action to address inadequate remedy at the state level.
Is Fisher out for a monetary judgment or an injunction?
I really liked your article, it was well written and easy for a non-lawyer such as myself to get a better understanding of the case. The only thing that troubles me about the response is how you see diversity as good…”I’m a great deal more sympathetic to the idea that a wide variety of educational benefits flow from diversity: better participation from all students in a variety of intracurricular and extracurricular activities, more knowledge packed in to the grades the school dispenses, broader fields of study, more critical thought and challenging of opinion, greater social tolerance in the form of student friendships and romances across racial lines, and the list goes on and on. Diversity is a good thing.”
I would suggest that this statement is exactly the problem. This is a white male normative perspective of what diversity is and what is means and why it is important, which is from what I can tell is what the court seemed to use too. As Justice Thomas even wrote, “As should be obvious, there is nothing “pressing” or “necessary” about obtaining whatever educational benefits may flow from racial diversity.”
Diversity is only not pressing or important when it is relegated to the position of how it could possibly benefit the dominate or in this case white male norm. You nor the court seem to point out the interpersonal advancements of all disenfranchised populations as they continue to be included in public institutions of higher education. The opportunities for advancement in a field of study. The modeling for younger people that they too can achieve. The general pride of calling yourself a college student in a pubic institution. The advice and message that you can give your community about what success is and how to be successful in higher education. These are and plenty more are pressing and necessary. It is pressing and necessary that the whole idea of equality in America is tested by the opportunities given to all it’s residents. We live in an America where minority groups are turned away from opportunities because of the fear of the unknown. The fear of what college is like, how to be successful there, the language, living away from home and many more ways that college is a mystery (probably for the vast majority of students). But when you don’t have models of people who are like you to support you, one can feel alone, isolated, unworthy, etc. when it has nothing to do with their actual aptitude. This is pressing and necessary. Abigail Fisher should have proven how it is pressing and necessary for her to go to UT. She should have proven how it was her dream, the only place to study XYZ, that she couldn’t have transferred in, how she had gone above and beyond other students to assure her place, that her addition to the campus was pressing and necessary. Her attorney didn’t even mention any of this.
When, as the law is interpreted says, that if government didn’t have diversity we would continue our existence as a people and the government would continue to function. Yes. If that is the qualifying test then we would never need or require diversity because government has proven that it has been able to function without any diversity in thought.
Lastly, do you also agree with the parts of Thomas’ opinion about segregation, Jim Crow, and slavery? I mean this case has nothing to do with systematic isolation of one particular group for denial of opportunity, which is the general problem with this case in the first place, because this case has nothing to do with resolving the “mistake/error/harm.”
Once again thank you for the article.
This is a great comment (and not just because I tend to agree with you.) You should come by more often. Cut back on the politeness, though; you’re showing the rest of us up.
Bravo. Seriously. I feel like I had a kernel of this thought in my brain but couldn’t muster anything beyond, “Defending privilege!” and the irony of it being done by a black man.
Nic Jay, you are welcome here any time you want to come back. That comment was space awesome, a compliment from the highest echelon of compliments available in our lexicon. You’ve got game, that’s for sure.
I admit fully to being a privileged white dude. The best I can hope for is to be conscious of other perspectives on things, but I can’t stop being who I am.
Tackling your last question first, I do find the intellectual congruence Thomas illustrates between the AA arguments offered by UT and the historical segregation and Jim Crow arguments to be eerie. Persuasively eerie, I’m not ready to go that far. But take-note-of and give-it-some-more-thought important? Yes. A statement like “We’re treating you differently because it’s going to be good for you” ought to be met with skepticism. Note that skepticism does not equal immediate rejection.
The point you raise about there needing to be other similar people already there in an institution like an university in order for them to have the ability to truly participate in it is trenchant and merits deeper reflection. A poke back — however it was that we got here, we do have substantial middle classes and professional classes with more than token memberships from every racial group (excepting Native Americans). There are role models. The difference at the University of Texas between the challenged race-conscious admissions policy and the previous race-proxied one, according to the SCOTUS majority opinion, was about 3% of the student population, most of the students in question being Latino (which seems right for Texas).
Diversity of thought is an important part of a properly-functioning university, and diversity of thought flows from diversity of perspective: those propositions are not subject to reasonable debate in my opinion. An inclusive social environment is also important to allow that diversity of thought to efflouresce and disseminate. Is that extra 3% as essential to that process as you indicate? I’ll certainly consider that further, in response to your challenging comment.
“Challenging” is meant in a good way, by the way. I had to be reminded by some other people that a “challenge” is interpreted by many people as a confrontation and a bad thing to do. I, however, think a challenge is a necessary part of argument, and I think argument is a constructive process that drives towards truth.
So for the record, I’m not condemning you for challenging the assumptions in the OP — far from it. I’m praising you for doing so.