Must Discrimination Be “Invidious”?

I began to reply to this comment by Hull, a valued new commenter here, on this post below, but the point Hull makes is offered so often in defense of racial preferences that I decided (unilaterally; that’s the virtue of having your own blog) to promote my reply to a full-fledged post.

Hull argues:

Racial preferences are not administered with animosity or resentment. In other words racial preference is not invidious. You are basically equating racial preference of today with racial segregation or some other invidious discrimination from the past and that is not the intent of racial preference or the result.

The idea that the only discrimination that should be proscribed is invidious discrimination, discrimination motivated by “animosity or resentment,” etc., is not unreasonable on its face. Both the 14th Amendment and the various civil rights acts of the 1960s could have done that, but they didn’t. They did not require individuals to be treated without regard to their race, creed, or color … except when the motive of those discriminating against them was, in the eyes of the discriminators, benign.

One neat trick of the “invidious” argument is thus to redefine “discrimination” to mean only policies that have the purpose or effect of denigrating a group to which an individual is said to belong. On this view, in other words, the only discrimination individuals have a right to be free from is discrimination that has the purpose of demeaning the racial, ethnic, or religious group to which they belong. In other word, requiring “discrimination” to be “invidious” transfers the right to be free from it from the individual to groups, all without benefit of legislation to that effect.

There is a very good reason civil rights laws were not written to require an invidious intent: a great deal of what common sense tells us is discrimination — and discrimination that we want to proscribe — is not associated with invidious intent or effects. Consider, for example, a hypothetical proposal to promote greater “diversity” in a law school by firing a number of Jews, who are vastly “over-represented,” and hiring more evangelical Christians, who are vastly “under-represented.” No invidious anti-semitism here. In fact, the early Ivy League quotas (which reduced the number of Jews but did not bar them altogether) were based in part on a fear that Jews were superior, not inferior. Most of us continue to believe that discrimination against, or for, an individual because of his or her religion is and should be barred, even though this discrimination would frequently involve nothing “invidious.”

One striking feature of the preferentialists’ use of “disparate impact” theory to attack many forms of what they see as discrimination is that it so blatantly conflicts with their defense of other policies they want to defend: requiring a high school diploma for a job is discriminatory, they say, because it has a disparate impact on blacks, but preferring blacks in admission is not discriminatory because there is no intent to denigrate or demean Asians. In short, the best example of why “invidiousness” does not work as a litmus test to determine discrimination is that, in many contexts, the most avid defenders of racial preferences reject it. They, after all, are the ones who reject the idea that discrimination requires intent, who want to ban this or that policy as discriminatory because it has a “disparate impact.” In the past few days, for example, I have discussed (here) assertions of discrimination by New York City ad agencies where there are no allegations of actual discrimination but merely of “under-representation” of minorities at the top. Similarly, in the Texas redistricting dispute (discussed most recently here) the Democrats said it was impermissibly discriminatory to transfer 100,000 Hispanics from this district to that one, even though there was nothing even allegedly “invidious” involved and the purpose in fact was to promote the election of a Hispanic, Rep. Bonilla, in the district from which the Hispanics, because they reliably vote Democratic, were transferred.

In fact, while we’re on voting, consider this: if an invidious, denigrating, demeaning intent or even effect is required in order to bar something as discriminatory, what would prevent a city, in the name of promoting real racial equality, from limiting the number of voters in city elections to the same number of voters from each race or ethnic group? True, this might decrease the ability of “whites” to elect “white” candidates (assuming, of course, that “whites” vote as “whites” for “whites”), but then racial preferences in admissions to the University of California significantly reduced the percentage of Asians who were admitted (and somewhat reduced the percentage of whites) and that presumably was fine.

Note, moreover, that for “disparate impact” analysis even to apply the policy or behavior in question must be neutral on its face — say the SAT test or Duke Power Company’s decision to require a high school diploma of all new hires (a decision that the Supremes disallowed in the first major “disparate impact” case). But racial preference policies by definition are not neutral on their face. They discriminate on the basis of race, “facially” and substantively and by design.

This argument, finally, does not equate racial preferences with segregation. But to say that segregation was much worse than racial preferences, which it clearly was, is not at all to say that the only discrimination that was or should be outlawed is discrimination rooted in racism.

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  1. Richard Nieporent March 9, 2006 at 3:49 am | | Reply

    Hull appears to be a well meaning liberal. Of course, the road to hell is paved with good intentions. His ideas about race and discrimination are based on many misconceptions. However, he is certainly less confrontational than our other leftist commenters for which I for one am grateful.

  2. Alex Bensky March 9, 2006 at 7:29 am | | Reply

    Hull’s viewpoint is in line with the Matsuda Doctrine, named after law prof Mari Matsuda, who contends that discriminating against some people on the basis of race is perfectly OK as long as they don’t fall within certain categories.

    Professor Matsuda refers to these as the previously silenced groups. Googling “Mari Matsuda” results in 9,380 hits, so I guess the white, patriarchal power structure hasn’t done all that good a job in silencing her.

  3. Hull March 9, 2006 at 10:38 am | | Reply

    O.k. this discussion is becoming complex, so I hope we can trace our conclusions on these individual issues back to the larger issues that we’ve addressed.

    John said:

    “The idea that the only discrimination that should be proscribed is invidious discrimination, discrimination motivated by “animosity or resentment,” etc., is not unreasonable on its face. Both the 14th Amendment and the various civil rights acts of the 1960s could have done that, but they didn’t. They did not require individuals to be treated without regard to their race, creed, or color … except when the motives of those discriminating against them was, in the eyes of the discriminators, benign.

    One neat trick of the “invidious” argument is thus to redefine “discrimination” to mean only policies that have the purpose or effect of denigrating a group to which an individual is said to belong. On this view, in other words, the only right individuals have to be free from racial, ethnic, or religious discrimination they suffer has the purpose of demeaning the racial, ethnic, or religious group to which they belong. In other words, the requiring “discrimination” to be “invidious” transfers the right to be free from it from the individual to groups, all without benefit of legislation to that effect.”

    John, while the legislation differentiating between invidious discrimination and benign discrimination is limited, the case law which has established this concept is voluminious.

    Discrimination on the basis of race is permissible when the discrimination meets the legal standard of “strict scrutiny”.

    Almost all educational institutions are required to meet strict legal requirements when taking

    race into account in admissions, financial aid, student assignment, and other educational policy

    decisions. These requirements arise from the Equal Protection Clause of the Fourteenth

    Amendment to the U.S. Constitution, which applies to “state actors” such as public school

    districts and public institutions of higher learning, and Title VI of the Civil Rights Act of 1964,

    which applies to both public and private institutions that receive federal funds.

    Based on U.S. Supreme Court rulings, both the Equal Protection Clause and Title VI require that

    race-conscious policies be subject to “strict scrutiny,” which is a high standard of judicial

    review in which the courts carefully assess both the importance of the goals underlying a policy

    and the means by which those goals are attained. A court evaluates whether the policy (1) serves

    a “compelling governmental interest,” and (2) is “narrowly tailored” to satisfy that interest.

    Strict scrutiny is used to test both “invidious” policies that discriminate against racial minorities

    and “benign” policies designed to benefit racial minorities.

    The courts have also ruled that a “strong basis in evidence” is usually required to justify a race-

    conscious policy. Although the term “strong basis in evidence” has not been clearly defined by

    the courts, it typically means that the governmental actor must provide more than a mere

    assertion of its interest and that a body of supporting evidence – which could include statistical

    evidence, policy evaluations, social science evidence, documentary evidence, or prior findings of

    discrimination – is available to justify the policy.

    http://www.civilrightsproject.harvard.edu/policy/legal_docs/cover.pdf

    I think your argument is that racial discrimination is always impermissible. The law does not support that argument.

    Racial discrimination is permissible when it serves

    a “compelling governmental interest,” and is “narrowly tailored” to satisfy that interest. Sometimes that “compelling state interest” is to reverse a pattern of proven discrimination. In those types of cases affirmative action programs giving preference to one racial group are permissible.

    Affirmative Action programs are (oftentimes) not invidious. When such programs can withstand strict scrutiny, they are permissible. This does not happen often for many of the reasons that you have articulated in our discussions.

    The case law oftentimes differentiates between “invidious” discrimination and permissible discrimination:

    Jana-Rock Const., Inc. v. New York State Dept. of Economic Development

    — F.3d —-, 2006 WL 391707

    C.A.2 (N.Y.),2006.

    “When a plaintiff challenges “racial classifications, imposed by whatever federal, state, or local governmental actor, [the classifications] must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Adarand Contructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). [FN1] “[T]he purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality opinion).

    [2][3] But once the government has shown that its decision to resort to explicit racial classifications survives strict scrutiny by being narrowly tailored to achieve a compelling interest, its program is no longer presumptively suspect. We do not think that it is appropriate automatically to apply strict scrutiny a second time in determining whether an otherwise valid affirmative action program is underinclusive for having excluded a particular plaintiff. In order to trigger strict scrutiny, such a plaintiff–like other plaintiffs with equal-protection claims–must demonstrate that his or her exclusion was motivated by a discriminatory purpose.”

    I hope I haven’t misinterpreted your argument, but I think that you are claiming that there is no legally permissible racial discrimination. That is not the case.

  4. John Rosenberg March 9, 2006 at 11:16 am | | Reply

    Hull – I’m aware of both the case law (or some of it) that hangs its hat on the “invidious” hook as well as the strict scrutiny standard. In fact, I generally support the strict scrutiny standard, or at least did until Justice O’Connor showed how porous and un-strict it was in Grutter.

    And no, I don’t think racial discrimination is alway barred. There are a few circumstances where I think, applying the strict scrutiny standard strictly, as I would, it could be allowed. An example, also from the case law, is the propriety of requiring an undercover police officer in a Puerto Rican gang to be Puerto Rican. (Can’t recall now if the gang in the actual case was Puerto Rican, but you get the idea.)

    I continue to maintain that the “invidious” standard would be completely unacceptable as a requirement for discrimination because it would allow much more discrimination than most people are willing to accept. I also continue to find it odd, as I’ve pointed out here many times, how awkwardly eery it is that those who say preferences are O.K. because they aren’t invidious unwittingly echo the noxious majority opinion in Plessy.

  5. Mark Seecof March 9, 2006 at 2:01 pm | | Reply

    I don’t think this detracts from your argument at all, but Griggs v. Duke Power Co. effectively outlawed the consideration of general aptitude tests as well as high-school diplomas in employment decisions.

    This has the subtle consequence of exposing employees to more arbitrary bias (invidious or otherwise). We can objectively validate tests as predictors of performance. We have no good way to validate the “gut level” human assessments required by Griggs.

    Any “hiring or promoting” manager can figleaf his bias as “assessment.” With no objective tests in evidence, it’s pretty hard for an aggrieved applicant to show, for example, that racial animosity outweighed performance-related factors.

    (Indeed, state-funded educational institutions have moved away from using objective tests to make admission decisions precisely because rejected applicants can so easily prove bias when it exists. It’s no credit to the Supreme Court that they endorsed this practice in Grutter.)

  6. Hull March 9, 2006 at 2:02 pm | | Reply

    Just to recap the discussion:

    John previously said:

    “Some preferences are O.K. But preferences based on race, religion, and ethnicity are not.”

    I responded that:

    “Racial preferences are not administered with animosity or resentment [so they should be o.k.]”

    John responded that:

    “civil rights laws were not written to require an invidious intent”

    In other words (if I understand exactly what you’re saying, and it’s possible I’m not); preferences based on race are not o.k. even if they have no invidious intent.

    My response to that was:

    Racial preference is allowed under U.S. law (determined mostly by case law) if the racial preference meets the “strict scrutiny” standard. In other words, racial preference IS o.k. (legal) if it is narrowly tailored and meets a compelling state interest.

    John most recently said:

    “I continue to maintain that the “invidious” standard would be completely unacceptable as a requirement for discrimination because it would allow much more discrimination than most people are willing to accept.”

    But, John, I think I’ve shown that courts do take invidiousness into account when determining whether discrimination is permissible or not. When discrimination is invidious, it can not meet the strict scrutiny standard. If discrimination is not invidious, and it is narrowly tailored, and it meets compelling state interests, it IS permissible.

    My arguments do not touch on the “political and moral” quality of discrimination (that you mentioned in a previous post) but I think “constitutionally” discrimination can be permissible.

    I think that the courts and society are moving in the direction that you propose. Conservatives have continued to make strides in dismantling racial preference in all arenas. I think that Conservative’s efforts in this regard have been more self-serving than altruistic, but after our numerous discussions I can now see how someone can (I think) sincerely disagree with all racial preference.

    I just don’t think we’re there yet.

  7. Michelle Dulak Thomson March 9, 2006 at 2:56 pm | | Reply

    Hull,

    If I may, can I get from you some rough definition of what you think constitute “racial minorities”? I’m asking in a sincere need for information. Plainly, some “racial minorities” are hurt in some sense by policies designed to help other “racial minorities” (the sudden jump in Asian-American enrollment at UCB after Prop. 209 is proof enough), so which do you mean? Or do you only count as a “racial minority” people whose racial cohort as a whole is not performing above median?

  8. Hull March 9, 2006 at 3:29 pm | | Reply

    Michele, I think racial minorities are, literally, the races that are not the majority in this country, non-whites. With the massive influx of Latinos into the U.S. that definition may become problematic fairly soon.

    Figuratively, though, when I think of racial minorities, I think of “vulnerable populations.” I argue from the standpoint that vulnerable populations oftentimes need assistance because they are vulnerable. Although they are comprised of many races, conceptually, I consider the disabled the same as racial minorities.

    I conceptually considered women in the same way that I consider racial minorities, but women’s current (alleged?) success in education and employment make me no longer consider them a “vulnerable population.”

    I don’t think that vulnerable populations will stay vulnerable forever. So, for example, Jews and many Asian groups were once what I would consider vulnerable populations, but I think they (for the most part) have moved past that.

  9. John Rosenberg March 9, 2006 at 5:12 pm | | Reply

    Hull writes:

    But, John, I think I’ve shown that courts do take invidiousness into account when determining whether discrimination is permissible or not. When discrimination is invidious, it can not meet the strict scrutiny standard. If discrimination is not invidious, and it is narrowly tailored, and it meets compelling state interests, it IS permissible.

    My arguments do not touch on the “political and moral” quality of discrimination (that you mentioned in a previous post) but I think “constitutionally” discrimination can be permissible.

    Hull, you are, unfortunately, right about how some courts, including the Supremes, have interpreted the law in this area in some, many, cases. That’s why I don’t argue that racial preferences are always illegal. I do argue that they’re wrong, and I believe the courts that have held otherwise have been mistaken, for the reasons I’ve given (and many others). I assume, being an obviously intelligent person, that you also think courts get things wrong from time to time. That something may be legal doesn’t necessarily make it right, nor does it even mean it should, or will, stay legal.

  10. Michelle Dulak Thomson March 9, 2006 at 6:25 pm | | Reply

    Hull, thanks for the definition!

    I can’t agree with it, alas. I don’t think Jews and Asians (“for the most part”) have “moved past vulnerability.” I don’t think recent Asian immigrants have so much as gotten to the beginning of vulnerability. Why anyone should think that new immigrants from East and Southeast Asia aren’t in exactly the same position as new immigrants from Central and South America I don’t know, but I do know that a kid from Guatemala with next to no English is a likely preference candidate, and a kid from South Korea with next to no English isn’t.

    Your remarks on women are interesting. Let’s just suppose for a moment that we were observing the US from outside. We see that all new children are divided (in pretty much equal numbers) biologically into cohorts A and B. The two cohorts are put into sociologically-identical environments. We then see that members of B are incarcerated at least ten times more often as members of A; get murdered several times more often; commit suicide several times more often; are killed or maimed at work several times more often; can be drafted, as A’s can’t, by law; and finally die on average five or six years before the A’s. Which one is the “vulnerable population” here?

    Or, to put it another way, how bad does the male/female imbalance have to be in the top levels of higher education before you’d countenance preferences for men on acount of their “vulnerability”?

  11. superdestroyer March 10, 2006 at 8:04 am | | Reply

    Hull,

    I consider your arguments some of the least effective I have ever read. It amazes me that more than 50 years after Brown V Board of Education that it is the left in this country that keeps arguing that separate and unequal are legal and good public policy so long as the policy meant well.

    A much easier policy to follow that separate and unequal are always forbidden that way we do not get the government arguing that whites at the University of Michigan need to be in a diverse environment to learn but the black students at Florida A&M do not.

  12. Hull March 10, 2006 at 8:41 am | | Reply

    Michelle,

    When I said Asians “for the most part” have moved past vulnerability” I’m referring to Asians who are not vulnerable (2nd, 3rd generation Asian-Americans; Asians who immigrate to this country with college degrees and financial strength, etc.). I consider the groups that you mentioned (new immigrants from East and Southeast Asia) generally to be vulnerable as well. You’ve mentioned before the alleged differences in treatment that a new immigrant Latino would face compared to a new immigrant Asian and I think that if what you allege is true, then it is unfair. I’m just not sure that it IS true. Do you have some statistics, a study, or report to support that allegation (that new Asian immigrants do not receive comparable preference to new Latino immigrants)?

    As for men and women: the scenario you draw out is exactly why I no longer consider women to be a vulnerable population. Women have historically been discriminated against in this country, but similar to many Asians (Japanese, Chinese) and Jews, they have overcome their vulnerability (for the most part).

    The question then is what policies (if any) need to be changed once a vulnerable population is no longer vulnerable. I think that preference should sunset when vulnerable populations achieve a degree of parity with non-vulnerable populations. But, then what do we do about the men? Men were previously a non-vulnerable population, but now they are becoming vulnerable. Should we now have preference for men? I think in some cases, yes. I think there are now many instances where men should be actively recruited to fill positions that are now over-represented by women. Will this shifting of preference work in the long run? I don’t know.

    John, you are obviously right that the legality of a policy does not determine whether it is morally correct (see: slavery, Jim Crow, and Japanese Internment among others).

    I disagree that racial preference is morally wrong. Maybe that should be the next chapter of this debate.

    Just to play devils advocate: I recall reading a Thomas Sowell article discussing racial preference as it has played out internationally. Sowell points out that oftentimes racial preferences generally benefit the least vulnerable of the “vulnerable populations” that we have been discussing.

    He also points out that while preferences for vulnerable populations are generally initiated as a temporary fix, they are often extended for decades past their established cut-off dates.

    He points to Malaysia as a country where racial preference has worked, but he also indicates that their situation is fundamentally different than the U.S.

    http://www.townhall.com/opinion/columns/thomassowell/2003/06/04/170183.html

    I think Sowell is not really objective in his research and while he points out that the situation in Malaysia is fundamentally different than the U.S. he does not allow the same to be said for comparison countries where racial preference has failed.

  13. John Rosenberg March 10, 2006 at 12:02 pm | | Reply

    Hull – The fact that you consider many new Asian immigrants to be “vulnerable,” and hence qualified to receive admissions preferences, speaks well of your values, but for better or worse racial and ethnic preference are precisely that: racial and ethnic preferences, not an anti-poverty program.

    You write that if what Michelle and I allege is true, “then it is unfair. I’m just not sure that it IS true.” But in fact it IS true. Take a look, for just one example, at the record in the recent Gratz and Grutter cases; the University of Michigan quite clearly and explicitly limits its preferences to blacks, Native Americans, and some (but only some!) Hispanics. For example, I think it includes only Puerto Ricans living here on the mainland, not from Puerto Rico (though presumably the latter would offer more “diversity”). That, or something similar, is true at virtually every school with preferential admissions (with the exception of the peculiar Puerto Rican restriction). Certainly the University of California did not give preferences to Asians because of their ethnicity, and in fact the percentage of admitted Asians increased dramatically after racial and ethnic preferences were outlawed, indicating that there had been a de facto quota limiting their admission.

    Re the moral argument against preferences, I like to think that’s what I’ve been offering, after my fashion, here for several years now. Of course, that argument has often also taken the form of how courts should rule, but I’ve never been confused, I think, between what I think is moral and what the current state of the law is.

    Actually, my argument is, I like to think, a composite of moral and historical. That is, my strongest argument against preferences is not so much based on an absolute and universal morality (they are always and everywhere wrong, etc.) as on a moral/political argument that I believe is all but commanded by our own historical experience. I’ve developed this most fully here nearly four years ago, though I have built on this argument in various posts.

  14. sharon March 10, 2006 at 12:59 pm | | Reply

    I always liked applying for scholarships for “first generation American college students” when I was in college. See, I am a first generation American college student. My mother was British. It was wonderful watching the “some are more equal than others” crowd try to explain that “first generation American” didn’t really mean “first generation American.”

  15. Michelle Dulak Thomson March 10, 2006 at 1:15 pm | | Reply

    Hull,

    What John said just above. There is an “ethnicity” preference at many schools for Hispanics (variously defined), and occasionally one for Filipinos, but never, in my experience, for other Asian nationalities. The new immigrant who happens to have grown up speaking Spanish (not Portuguese — sorry, all you Brazilians) is in a different position from a new immigrant speaking any other first language.

    Interesting that you should mention second- and third-generation Asian-Americans. Don’t we get into a tight logical corner here? If preferences are meant to compensate for past discrimination, then the people whose life prospects were affected by it are obviously the ones who should be compensated. That is exactly why I think the argument for preferences for the decendents of slaves and for Native Americans is at least plausible. These are people whose ancestors have suffered great harm that has never been properly compensated.

    But . . . but . . . that goes exactly the same for Chinese- and Japanese-Americans who have been here many generations, because there is nothing now comparable to what these groups suffered living in America 50 or 100 or 150 years ago. If we’re compensating for anti-Chinese racism, we ought to be compensating those whose great-great-grandparents built the Western railways. If we’re compensating for anti-Japanese racism, we might start by giving preferences to those whose grandparents were interned. Whereas new immigrants (from anywhere at all) have no moral claim to compensation, because they haven’t been discriminated against at all.

    In other words, the people you think aren’t “vulnerable” are the people who have the strongest moral claim for preferences. Complicated, yes?

    Re Sowell, I remember his earlier discussion of Malaysia’s preferences in Preferential Policies, and there he said that it was against the law, not to “promote intergroup strife” (though it was likely phrased that way) but to criticize Malaysian pro-Bumiputra policy. Googling “bumiputra” will give you an idea of how extensive the preferences are we’re talking about. From bumiputra-only housing developments, to preferences in getting a permit to import a car, to massive anti-Chinese and -Indian discrimination in higher education, well, quite the model there.

    I think Sowell says it’s the most successful preference system in the world mainly because there haven’t been violent riots over it yet, and that he says it wouldn’t work here because you can’t suppress speech on a given topic with a jail sentence here. Also, it has this little twist on our preferences: It’s the majority that get the preferences, the minorities that don’t.

  16. Michelle Dulak Thomson March 10, 2006 at 3:53 pm | | Reply

    sharon,

    Your story reminds me of those white South African American immigrants who tried to get preferences as “African-Americans.” The general response was “That’s not what we meant!”

    Well, then say what you mean, already. Tell us up-front what the criteria of African-American-ness are. Are you African-American if you’re a recent African immigrant? Only if dark-complected? Do immigrant Cape Coloured count? Are you still Black if you’ve been born in a Latin American country, but would be perceived as Black if you walked down a typical American street? Or is everyone of every hue born in the Dominican Republic “Hispanic” by definition?

    You see what a mess we have here. I suggest that we ditch the whole thing. If you’re poor, we compensate you for your poverty. If you’re learning English from scratch, we understand why your English needs work. That’s all. If you can’t speak English, it shouldn’t matter what you can speak.

  17. John Rosenberg March 11, 2006 at 2:01 pm | | Reply

    Michelle:

    Are you African-American if you’re a recent African immigrant? Only if dark-complected? Do immigrant Cape Coloured count? Are you still Black if you’ve been born in a Latin American country, but would be perceived as Black if you walked down a typical American street? Or is everyone of every hue born in the Dominican Republic “Hispanic” by definition?

    And don’t forget my friend Rick (not that you know him): His Italian family moved to Argentina, where he was born, and yet Rick qualifies for preference as a “Hispanic” virtually everywhere preferences are given.

  18. Michelle Dulak Thomson March 11, 2006 at 3:26 pm | | Reply

    John, I think your friend Rick will benefit not a little from the cluelessness of bureaucrats, who generally can’t tell a Spanish surname from an Italian one. Argentina is full of emigrée Germans, who don’t count as “Hispanic” in this country, because even a complete idiot can tell German from Spanish surnames. Evidently Italian names are a more difficult challenge.

  19. John Rosenberg March 11, 2006 at 4:18 pm | | Reply

    Argentina is full of emigrée Germans, who don’t count as “Hispanic” in this country….

    Michelle, I believe that many — perhaps most — preferences for Hispanics include as part of the definition that they come from Latin or South America. Thus ethnic Germans (are Germans an ethnic group?) who come from Argentina can, I think, often qualify for Hispanic preferences, as can Portguese-speaking Brazilians.

  20. John Rosenberg March 11, 2006 at 4:47 pm | | Reply

    Michelle,

    A brief Google reveals that some affirmative action programs define “Hispanic” in a way that includes only South Americans of “Spanish descent or culture.”

    But many don’t, such as this definition from UC Berkeley:

    •Hispanic – (including Black individuals whose origins are Hispanic) – This definition encompasses:

    •Mexican/Mexican-American/Chicano: Persons of Mexican culture or origins, regardless of race;

    •Latin-American/Latino: Persons of Latin American culture or origins (including persons having origins from Central America, South America, Cuba, Puerto Rico, and the Dominican Republic), regardless of race;

    •Spanish/ Spanish-American: Persons of Spanish culture or origin not included in any of the Hispanic categories listed above

  21. shawn March 11, 2006 at 5:15 pm | | Reply

    Michelle,

    The decedents of the Japanese who were interned received a sizeable stipend for their troubles from congress in 1989. I don’t see how a couple of years of internment is comparable to centuries of slavery, you do, apparently.

  22. Michelle Dulak Thomson March 12, 2006 at 5:52 pm | | Reply

    shawn,

    I don’t know that a one-time payment of $20K constitutes a “stipend,” which I’d always understood to be annual or at least paid out over intervals . Not that it really matters. The descendents of the Chinese immigrants who built the railroads and did much else that amounted to slave labor in the early days of California have been “compensated” only in the sense that there’s a general acknowledgement that it was all very, very sad. No one is going to compensate them in university preferences.

    But new immigrants from some (only some) parts of the world do rate preferences, though they’ve suffered no discrimination at the hands of Americans at all.

  23. David Nieporent March 13, 2006 at 5:24 am | | Reply

    A couple of quick points about Japanese reparations:

    1) They were not available to “decedents” — [sic] I assume this means “descendants” — of internees generally, but only to internees, or if those internees were dead, spouses, children, or parents of internees. In other words, people closely situated to the wrong.

    2) While internment was a racial wrong, the reparations were not a racial benefit. Only someone actually interned (or his immediate family) was eligible; the reparations were not given to Japanese-Americans merely for looking like people who were wronged, let alone to “Asian-Americans,” “people of color” or “disadvantaged minorities” or some other modern liberal euphemism.

  24. […] a bad thing. The Supreme Court approves of discrimination … unless it is invidious, which, in plain language, translates to “motivated by ‘animosity or […]

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