Writing on NRO’s Phi Beta Cons, Carol Iannone observes:
The semi-hysterical diatribe of Mary Sue Coleman, president of the University of Michigan, over the victory of the MCRI [discussed here] indicates the extent to which the concept of “diversity,” or outcome-based group equality, has become the new definition of America for many, competing with the older understanding of equality of the individual before the law.
Indeed, Iannone notes, worship at the altar of “diversity” has become so pervasive among the nation’s elites that she offers a sobering but much-needed warning:
I am overjoyed at the victory of the MCRI but I would caution against becoming too confident about defeating affirmative action outright. First of all, I have heard too many premature declarations of victory in the past and I think all they did was invite complacency in the middle of the battle. Second, the forces aligned on the side of preferences are comprised of just about all the structures of our society: government, labor, business, military, non-profits, civic organiations, mainstream churches, and the two major parties. (Harry Stein details the extent of the Republican Party’s retreat on affirmative action in the latest City Journal). Not only won’t the Republican Party campaign on eliminating preferences, but will actually oppose those who do. And of course “diversity” received constitutional approval in Grutter. Admittedly, a majority of ordinary Americans is evidently on the anti-preference side, which is very heartening, but it’s not at all clear that that will be enough. Even a Supreme Court reversal on Grutter, as welcome as that would be, might not be enough to stem the tide.
Iannone links, in an intelligent manner, the rise of “diversity” to massive immigration unleavened, because of infatuation with “multiculturalism,” to the older commitment to assimilation.
Thomas Sowell once wrote of a young nigerian who complained of the tyranny of merit. If there were black people who tested as well as asians or whites on the tests society considers important and they were being kept out of universities, no one would doubt it was unfair. The problem comes when those who don’t have the same level of merit want the same prize of merit as those with more merit. My brother (he’s black like me) is a doctor. the assumption of his med school classmates was that he did not do as well as they on tests, which was not true. He also told me that a majority of black students fail biochem (he did not). They dont have the background for it. So the kind of diversity that is practices stigmatizes some and expects too much of others. The next step of course is to have different standards not only for admission but for graduation as well or to get rid of every course that we dont do as well as asians or whites in. We were having this discussion and someone said well, is biochem really necessary to doctors. What about physics? who is to determine what courses anyone should take and what is merit anyway? Because so far all discussions proceed as if the test scores do mean something but that blacks should not be expected to get as good scores as some others. You could make an argument that the tests themselves should not be administered. This is the next battleground.
The contention is correct. Voters don’t control government on this issue.
No amount of voter pressure is going to make schemes based upon race, sex, etc. go away.
The programs provide employment and give power to government employees. Ending that won’t happen.
Whatever the words of the law say they will just be interpreted as meaning something else.
“the forces aligned on the side of preferences are comprised of just about all the structures of our society: government, labor, business, military, non-profits, civic organiations, mainstream churches, and the two major parties.”
Perhaps this is because they believe that Affirmative Action works to achieve its stated goals. Without persuasive evidence that affirmative action does not help the disadvantaged to progress (its stated goal), why should they (the aforementioned groups) retreat from AA?
The evidence against AA from California at best shows that removing affirmative action doesn’t hurt minorities as much as AA proponents claim. That’s not a persuasive enough reason to discontinue. As for the claims that AA is discriminatory, it appears that this particular piece of rhetorical judo has been succesful. Indeed, it appears that a majority of citizens have been convinced by conservative wordsmiths that affirmative action invidiously discriminates against some groups. That’s unfortunate, but the fact that a majority of citizens feel a certain way a bout an issue is not necessarily a good enough reason to follow their opinion. There are several instances in this country’s history where a majority of citizens felt that “A” was good and “B” was bad, but when viewed objectively the majority was wrong. Slavery comes to mind. The Dubai Ports debacle also comes to mind.
As for Anita’s statement that:
“If there were black people who tested as well as asians or whites on the tests society considers important and they were being kept out of universities, no one would doubt it was unfair. The problem comes when those who don’t have the same level of merit want the same prize of merit as those with more merit.”
I cannot think of a greater mischaracterization of the affirmative action debate. Are whites and Asians being “kept out of universities”? Do you think that the number of whites and Asians attending universities has declined because of Affirmative Action? Even at selective schools this is not the case.
Merit: Schools have selected students based on criteria beyond grades and test scores since schools began being selective in this country. Just ask George W. Bush who somehow managed to attend Yale with a C average. This idea that everything is fair and equal except for affirmative action is a complete misreading of the reality of school admissions. Applicants are judged on a number of different factors and occasionally schools choose to admit students who do not have grades or test scores that are as high as other students. Athletes, musicians, language specialists, applicants who have shown high civic involvement and/or leadership may all be given consideration beyond grades and test scores.
Hull’s interesting comment deserves a longer reply than I have time for now, and so I’ll limit myself here to one or two observations.
First, either there is or there isn’t a right for Americans to be treated without regard to their race. If there is no such right, then the question of whether or not race preferences should be pursued is purely a political question — or, if you prefer, a question of policy. But if that’s what it is, they you think that the votes of citizens — especially, I would add, when they are voting on something a fundamental as a constitutional amendment — should be regarded as controlling and final. Do we really want to live in a country where questions of policy are decided by corporations, judges, universities, etc., in direct opposition to clear majority opinion as expressed not only in legislation but in constitutional amendments? That would be taking judicial activism and its analogues to new heights, or depths.
On the other hand, if we do have a right to be treated without regard to our race, then we should, and do, expect the institutions of society to recognize that right and courts to enforce it.
Note that this question of rights is independent of whether preferences “work.” It’s clear that what Hull means by “work” is “help the disadvantaged,” but this is not the rationale that is used to justify preferences in admissions. The justification-du-jour is “diversity,” and as I’ve argued many times by that flimsy standard preferences always work because they always produce some minorities for whites and unfavored minorities, such as Asians, to benefit from being exposed to. (Don’t talk to me now about sentence-ending prepositions.)
Finally, Hull but asks and asserts:
The number of whites and particularly Asians who attend universities no doubt has not declined as a result of racial preferences, but it is clear beyond cavil that the number — again, at least of Asians — who were able, in California, and are able in other selective schools has been significantly reduced by preferences given to other groups. I have just given some of those numbers, again, in this post and the UPDATE to it.
In closing, it is worth noting, again, that Hull implicitly assumes that discrimination against almost any number of individuals unimportant. His only question is whether whites or Asians, as a group, has been affected. And even there, as long as they manage to go to college somewhere the fact that they might have been discriminated against somewhere else doesn’t matter. This stops just shy of being reminiscent of the old separate but equal argument: no problem that blacks were excluded from the University of Alabama, because they could always go to Alabama State is not so far from no matter that Jennifer Gratz was excluded from the University of Michigan because of her race (even Justice O’Connor confirmed that) since she could go to UM at Dearborn….
And really finally, merit: I have no problem with public schools considering anything they want besides grades and test scores … except race, ethnicity, and religion. The fact that preferences for all sorts of things are legitimate doesn’t legitimize preferences for race, ethnicity, or religion.
On John’s first point regarding whether there is or is not a right for Americans to be treated without regard to race. As I’ve mentioned before: the first amendment bars restrictions on free speech. But, we all know that there are some things that are illegal to say. You can’t yell “fire” in a crowded theater and expect your first amendment right to protect you. Similar to the the right to free speech, the “right to be treated without regard to race” has exceptions. These exceptions have been enumerated in case law. The right to be treated without regard to race is not absolute and when it is narrowly tailored to meet a compelling state interest it is (in many cases)permissible under the law. It is also permissible beyond a legal justification because it, in fact, helps many people.
While diversity may be a “flimsy” standard, I have yet to hear anyone succesfully argue against it.
And once again we circle back to group versus individual rights. I and others contend that there are group rights. Native Americans, the Disabled, the Military, and children all have laws that protect and/or prescribe rights that protect them as individual groups.
http://www.law.cornell.edu/wex/index.php/Group_Rights
While I do not condone INVIDIOUS discrimination against individuals, I do accept that non-invidious discrimination geared toward compelling state interests is a valuable tool in achieving greater fairness in this society. I don’t feel any worse about it than I do about paying taxes. Sometimes it hurts, but it is for a greater good.
Finally, as a personal example, a couple of years ago I was one of two top candidates up for a position in my field (I know this because I knew one of the people on the hiring committee). I lost the position to someone with less experience than me, but who was a disabled veteran. The disabled veteran received preference over me and I’m o.k. with that. I was discriminated against, but it was for a higher goal which was (for one)to include people from his group in the workplace. I can live with this discrimination because I know that it was for a greater good.
The Civil Rights Act could have been written to bar only discrimination that is (meaning: that a judge regards as) “invidious,” but it wasn’t. It could be amended to so read, but it hasn’t been. Nor does (read: should) the 14th Amendment guarantee equal protection of the laws only in circumstances where denying the equal protection is regarded as invidious. But this becomes pure semantics after a while, since I believe that any policy whose intent is to benefit some and burden others because of their race is invidious.
I don’t believe in group rights, but even if I did I would policies that clearly gives a benefit to all members of preferred races or ethnic groups while burdening all members of un-preferred races or ethnic groups as a rights violation.
Of course you could argue that blacks and Hispanics are groups that have rights and Asians and whites are groups that have no rights, and your argument would be no worse than any other argument for racial preferences. In fact, it would be hard to distinguish that argument from the one you’re making now.
Regardless of whether exceptions to bans on free speech are written into the first amendment or whether exceptions to the right to be treated without regard to race are written into the 14th Amendment or the CRA, these exceptions exist. So, the fact that these exceptions are not explicitly written into these laws does not mean that these exceptions (like affirmative action) are invalid, unlawful, or wrong.
Also, as you well know, the intent of affirmative action is not to burden any group as you claim when you state: “I believe that any policy whose intent is to benefit some and burden others because of their race is invidious.”
This is not an issue of semantics, this is an issue of only presenting two options (discriminate or don’t discriminate) when there is at least one more (don’t discriminate invidiously).
Finally, whether you believe in group rights or not is irrelevant. They exist and on occasion they must be balanced against the rights of individuals. Child labor laws prevent some individual children from working despite the fact that they may want to or are able to. Disability Rights law allows some disabled individuals privileges like preferential parking that non-disabled indivuals cannot benefit from. Native American tribal entitites can operate gambling enterprises although other individuals cannot. All of these rights are conferred to groups and soemtimes at the expense of individuals.
the fact that these exceptions are not explicitly written into these laws does not mean that these exceptions (like affirmative action) are invalid, unlawful, or wrong.
To say that racial preferences are not “invalid” or “unlawful” is simply to state what some courts have held (contrary, by the way, to the clear text and legislative history of the Civil Rights Act). To day that they are not “wrong” is altogether different, and is simply based on the belief (which I think is “wrong”) that racial discrimination is an acceptable method of creating some desired good, like “diversity.”
Also, as you well know, the intent of affirmative action is not to burden any group as you claim when you state: “I believe that any policy whose intent is to benefit some and burden others because of their race is invidious.”
I don’t know any such thing. On the contrary, if there are a limited number of spots to fill, and you give an advantage to some applicants because of their race, you are imposing a burden on member of all unpreferred groups because of their race. Whatever your own intent, I believe that is objectively invidious.
Finally, whether you believe in group rights or not is irrelevant. They exist and on occasion they must be balanced against the rights of individuals. Child labor laws prevent some individual children from working despite the fact that they may want to or are able to. Disability Rights law allows some disabled individuals privileges like preferential parking that non-disabled indivuals cannot benefit from. Native American tribal entitites can operate gambling enterprises although other individuals cannot. All of these rights are conferred to groups and soemtimes at the expense of individuals.
Well, since you don’t believe in an individual right to be free from racial discrimination but you do believe in “group rights,” why stop there? Jews have suffered discrimination in this country; let’s give them some rights other people don’t have to make up for it. Evangelical Christians are notoriously “underrepresented” in elite universities, among students and faculty; let’s give them some special preferences in the name of promoting “diversity.” Etc. Was it Madison who warned us against putting our faith in “parchment barriers” like the Constitution? Even parchment would provide a sturdier barrier than what would be left of the First and Fourteenth Amendments if people you agree with ever get a totally free hand.
I wlll say, however, that your “group rights” analogies are interesting, and, alas, probably apt since a) racial preferences treat preferred minorities as though they are children, needing special protection of the state; b) as though they have been disabled by the discrimination practiced against them and so are incapable of meeting the standards we require of people who are healthy and whole; and c) as though they are a conquered people, wards of the state in many ways, who have been given special privileges through treaties with defeated entities.
Is that the sort of equality you really want?
Hull, if the criteria are not test scores or grades, then what are they? When I was in grad school, I used to help out undergraduate black students or I should say try to help some out because some were beyond help. I was really dismayed to find so many who could barely write a correct sentence. They were young people who really did not know anything. Before that experience, I used to think it was racism, whenever anyone brought up the issue of performance. Its one of the things that began to change my mind. I don’t think whites who performed at that level could get into the college. That’s when I really began to think about what the lowered educational standards have done to us.
If you are saying that there is no disparity between groups, that is one thing. If it is all a lie, if whites’ grades or test scores are not better than blacks, then that casts an entirely different light on the matter. Then it is unfair to complain of our performance. But if that is not true, my point remains. Who gets to go to medical school and who graduates, how should it be determined. If blacks fail biochem or physics at a greater rate than others, should those courses be eliminated for us in favor of other credentials? What is the implication of that?
“Well, since you don’t believe in an individual right to be free from racial discrimination but you do believe in “group rights,” why stop there?”
Again, you attempt to paint this as an all or nothing propostion. I have never said that I don’t believe in an individual right ot be free from discrimination. I said that there are exceptions to the rule. I know this is tough for Republicans to understand, but oftentimes there are more than two options available to answer a given question. This is a difficult concept for the “your either with us or against us” crowd, but I promise you that this is indeed the case.
Your comments about group’s rights are very revealing.
I don’t consider the fact that Native Americans, children, disabled people, or military people needing protection or particular consideration because of their unique group characteristics to be a weakness. Apparently you do. I don’t consider providing a ramp for a person in a wheelchair a “special privilege.” Nor do I consider disabled people “incapable of meeting the standards we require of people who are healthy.” Disability Rights law allows disabled people access to this society. It is not a special privilege granted. It’s a right.
Your comments on group rights suggest that you place negative value on people whose life circumstances put them in vulnerable positions. This says far more about your weakness than theirs.
I don’t consider the fact that Native Americans, children, disabled people, or military people needing protection or particular consideration because of their unique group characteristics to be a weakness. etc.
I don’t either. What I do consider a weakness, or worse, is a policy that treats all blacks (rich ones, poor ones, foreign ones, domestic ones) as though they are disabled, needing a ramp up to success while everyone else has to hike up the stairs.
Anita: I answered your question regarding criteria beyond grades and test scores in the last paragraph of my first post on this topic above.
John: That is just demagogic nonsense. Affirmative Action does not treat blacks as though they need a ramp to success. That kind of rhetoric is the reason your party just got shelved.
Hull: Well, if blacks don’t need the ramp to success (and I’d certainly argue at such a coarse level of categorization they certainly do not), surely you can’t argue against the elimination of the “ramp” via the MCRI? Michigan’s affirmative action is a very blunt stick, based upon published analyses of the composition of admitted classes. Right up to the Fall 2005 entering class, there was a very obvious “ramp” provided to black admittees in terms of overlooking lower GPAs and test scores. Frankly, Mary Sue Coleman and her ilk are little more than defenders of racial bean counting.
And, since you evidently slept through the actual campaign, the Republican establishment opposed MCRI – and the one major statewide office-holding Republican (Michigan AG Cox) who did support it sailed to an easy re-election. Nice try to spin a defeat though.
Hull,
You stated that you were discriminated against when a disabled veteran with inferior merit was selected for a job instead of you. You also said that you were ok with it.
That discrimination is not illegal, yet affirmative discrimination based on race or gender is, according to the Civil Rights Act of 1964. So, your point is moot.
Separate from your story of being discriminated against for reasons other than merit, you seem to want to carve out exceptions to laws.
So, give it a try. Let’s hear it. Please restate the Civil Rights Act of 1964 with your exceptions. In particular, please rewrite this clause:
TITLE VI–NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
SEC. 601. No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Note that it says “no person.” It does not refer to a numbers game in which “persons” can be discriminated if their “groups” don’t suffer “too much.” One of your arguments above.
Finally, where do you get your audacity to invent new laws out of the aether which clearly violate laws that are actually written down? Should we from now on stop every time we have a question in life to ask Hull? How did you get so smart?
When you say that you don’t mind being passed over, even though you were the candidate with the most merit, that is your perspective. Where do you get the audacity to assume that others in a similar situation could “afford” the price you paid. The odds of getting a job in my field are 3-5%, and it takes a 4 year job search to get a job (if you get one). During this period, it only takes once to be denied a job to essentially be bounced out of the field. During this time period, I was literally (actual words) told that I would not be hired because of my gender (one offendor was University of Michigan). I literally went through several years when I could NOT afford your “little price to pay” for your social justice of affirmative discrimination.
Now, if you are happy to pay for “this small price,” then where were you when I could not pay my bills? Are you willing to donate to such cases? If so, can I send you my bills now?
Finally, why don’t you quit your job? There must be more people with inferior merit who you are keeping out of a position. Note that YOUR race/gender won’t suffer too much, because there are probably already too many of you anyway.
ACF asks: “Please restate the Civil Rights Act of 1964 with your exceptions.”
The exception is ascertained through “strict scrutiny” used by courts in the United States to decide whether an act of discrimination is permissible. When a governement entity or entity receiving governement funds discriminates, you can take them to court if you believe the discrimination unfair. A court will/should weigh the discrimination using strict scrutiny and if the discrimination is narrowly tailored to meet a compelling state interest, it is permissible. This is an exception to our right to be treated without regard to race.
http://en.wikipedia.org/wiki/Strict_scrutiny
As the syllabus in Grutter v. Bollinger explains:
“(b) All government racial classifications must be analyzed by a reviewing court under strict scrutiny. [Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227]. But not all such uses are invalidated by strict scrutiny. Race-based action necessary to further a compelling governmental interest does not violate the Equal Protection Clause so long as it is narrowly tailored to further that interest. [E.g., Shaw v. Hunt, 517 U.S. 899, 908]. Context matters when reviewing such action. [See Gomillion v. Lightfoot, 364 U.S. 339, 343—344]. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the government’s reasons for using race in a particular context. 13—15.”
So when you say, “discrimination based on race or gender is [illegal], according to the Civil Rights Act of 1964,” you are not quite correct and my point is certainly not moot. I didn’t invent these “new laws out of the aether.” Strict scrutiny is a well established legal concept. And to answer your question, I got so smart by reading.
I am sorry to hear about your employment troubles, but there are people who are worse off than you. I’ll leave the rest of your comment alone as it seems to be written out of extreme ignorance.
M.J. Wise: I have not kept abreast of the MCRI debate.
One last point. John argued earlier that:
“if there are a limited number of spots to fill, and you give an advantage to some applicants because of their race, you are imposing a burden on member of all unpreferred groups because of their race. Whatever your own intent, I believe that is objectively invidious.”
Obviously I disagree. In education, if there are a limited number of spots and certain groups apply for those spots in fewer numbers, I see nothing wrong with giving extra consideration to the groups who apply in fewer numbers. If there are 50 spots available and 100 whites apply and only 10 latinos apply, it makes sense, to me, that you may give the 10 latino applicants broader consideration in the interest of including latinos. This is particularly true when the instituion in question previously denied entrance to all latinos as a matter of policy.
Of course, if there is nothing wrong in principle with taking race into account to benefit some and burden others in order to promote what you regard as a desirable mix of people from different groups, there could also be nothing wrong when I, exercising my academic freedom, took race into account to create a mix that was very different from yours — say one of each from 37 groups as opposed to your “critical mass” from only one minority group. Nor could there have been anything wrong with the Ivies limiting the number of Jews (as then now apparentlyh limit the number of Asians, and as Berkeley certainly limited the number of Asians before being prohibited from doing so) in order to promote they regarded as an ideal mix. They didn’t exclude Jews, after all, only limited their numbers, nor was this necesarily “invidious” in your terms because the limiting as based on the notion that the Jews were more, not less, qualified to do the work.
Off the top of my head, I imagine that taking one of each from 37 groups would not pass a strict scrutiny sniff test because it is not “narrowly tailored.” It encompasses too much and/or fails to address essential aspects of the compelling interest.
I do not believe that limiting Jews would achieve any compelling state interest (such as diversity) and, as such, would also not pass strict scrutiny.
Of course, I’m not a supreme court justice, so my analysis may be flawed.
I’m not a Supreme Court justice, either, or even a lawyer, but I do think your analysis is flawed. But before (or maybe even in lieu of) saying why, let me note that here you’re simply predicting what a court would do.
More relevant to our discussion, however, is how you, or other defenders of racial preferences to promote “diversity,” would respond to my version of diversity.
First you (and here I mean the larger “you,” not necessarily you yourself in all the particulars that follow) your position rests on the assumption that racial preferences violate no fundamental principle, or perhaps that the “principle” (here needing quotes) is so porous and flexible that it never prevents the discrimination you like.
Second, “diversity” is defended as absolutely crucial to the academic enterprise, and institutions justify their own version of “diversity” … and
Third, they thus attempt to surround the discrimination they insist they need to practice to accomplish it with the barrier of academic freedom.
So, leaving aside for a moment your or my prediction of what a court would do, would you support my institution if it decided that more “diversity” is better than less, that the indispensible goal of “diversity” would be better served by having fewer representatives of a very large number of “underrepresented” groups rather than a “critical mass” of one some from two others, and hence that it would devote its financial and other energies to recruiting qualified applicants from a very long list of “underrepresented” groups — not only domestic blacks and Native Americans but also Congolese, Thais, New Zealanders, Bangladeshis, black South Africans, white South Africans, Kurds, etc., etc.? Note that my institution would follow this enhanced “diversity” program in full knowledge that doing so would of necessity limit the numbers of domestic whites, blacks, and Hispanics to below, possibly well below, their proportions in the U.S. population, but we think “diversity” requires this discrimination.
Maybe you would have no problem with my hypothetical program. But if for some reason or reasons you don’t like it, I would like hear what arguments you would muster to oppose it — other than, of course, you prefer your version of “diversity” to mine.
Finally, you’re also wrong about the old Ivy Jewish quotas. They were defended in terms very similar to today’s “diversity” mania: that admitting strictly with regard to merit would lead to student bodies so heavily Jewish that non-Jews would be discouraged to apply, making them even more heavily Jewish. Nothing against the Jews, they often said, but that’s not the kind of campus we want.
If there are such things as “group rights,” I am wondering how they are to be exercised by the “group.”
“African-Americans” aren’t admitted to the UM College of Law. Individual African-Americans are admitted. “African-Americans” don’t even decide who will represent them in the exercise of these group rights, that is, who will receive, individually, the largess of the group right.
Obviously, we can’t have the members elect their representatives. In addition to being logistically impossible, it would be philosophically inconsistent.
If rights can only be exercised by or on behalf of individuals, just what is left of the concept of “group rights”?
Bill – I have stolen your comment and used it here.