Under a headline proclaiming (falsely) that “Initiative drive intend to bar governments from considering social factors in education,” The Arizona Daily Dispatch has a long news article today by Howard Fischer of Capitol Media Services defending the use of racial and ethnic preference in law school admissions. At least, given its placement, I think it was intended to be a news article, but perhaps the Daily Dispatch normally runs editorials that look like news stories. .
This story certainly made no pretense of being either fair or balanced, and the article’s headline is one of the most misleading I’ve seen in any newspaper; the initiative would not bar the consideration of “social factors,” only race, ethnicity, and sex. The article quoted extensively, and approvingly, the defense of racial/ethnic preference by the deans of the law schools at Arizona State (Patricia White) and the University of Arizona (Toni Massaro), but author Fischer couldn’t even find a whole sentence to quote from any supporter of the initiative, although he did extend to Max McPhail, the director of the Arizona Civil Rights Initiative campaign, most of one sentence. As though that was far too much coverage, however, Fischer then promptly returned to Dean Massaro to take issue with McPhail’s one clause.
The argument of the deanly duo boils down to the familiar “exposure” necessity: students who are not themselves “diverse” need to be exposed to those who are. This point was made a number of different times and ways. Typical was this, which allows me to quote the one clause alloted to McPhail:
McPhail said diversity is a good thing. But he said it should come “not at the expense of where someone is being judge differently because of their race or their gender.’’
But Massaro said these factors are important for not just the education of the particular student admitted but the rest of the class. Consider, she suggested, teaching constitutional law to a class which includes a Native American student from a reservation with different cultural and legal traditions.
“It’s a positive value that informs the class discussion,’’ she said.
This point is not ridiculous, even though the value attributed here to the preferential admission of a Native American could also be achieved by something as unthreatening to the “without regard” principle as inviting a guest speaker for a day or two.
Actually, inviting guests to articulate “different cultural and legal traditions” would also have the virtue of lifting from the admissions committees the obligation they no doubt now feel to admit some CEOs to enliven and inform discussions of corporate law, old people for their essential views on trusts and estates, fishermen and ship captains for their angle on law of the sea, a boatload of foreigners from all over to provide international perspectives on international law, and tax cheats and felons for their unique and essential points of view on tax and criminal law.
“Consider, she suggested, teaching constitutional law to a class which includes a Native American student from a reservation with different cultural and legal traditions.”
“‘It’s a positive value that informs the class discussion,’ she said.”
What if that student doesn’t want to be the token Indian? Isn’t it a complaint that minorities (reasonably) make, that they have to represent their group when they may just want to be Joe Student?
I had a Native American roommate in college and knew a number of other Native Americans in my dorm. (They were grouped together to support each other, though they came from different tribes and very different backgrounds.) People from low-income and working-class families who excel in school, get a college scholarship, earn a degree and qualify for law school are not exemplars of an alternative culture. They have adopted the striver culture that we used to refer to as work, study, get ahead. My roommate explicitly rejected the way of life in which she’d been raised. She worked very hard to leave that life behind. And she succeeded.
Somebody really ought to inform Massaro that there are no Eskimos in African-Studies at any College!
John, the most major problem with this analysis is that Native American status is usually not a racial or ethnic category according to US Supreme Court rulings (Mancari v. Morton), unless the government uses a blood quantum test rather than tribal membership.
This is because tribes are separate, sovereign nations and our relations are governed with them under much different types of law. Tribal status is a “political classification”, not racial.
That said, I’m not fond of either that or absolute tribal sovereignty at all (to be fair, I don’t believe much in State sovereign immunity either, although I do agree with the principle of federalism so long as states can be sued and held accountable for their errors), but neither MCRI nor AzCRI is going to change that. But the tribal issue will be used as a red herring in Arizona moreso because of the demographics.