Discriminations

In an interesting post today, Ilya Somin criticizes President Obama’s assertion, in his inaugural address, that “The question we ask today is not whether our government is too big or too small, but whether it works.” Here’s Somin:

This is a commonly heard argument in response to concerns about the growth of government. Who could possibly be against government when it “works”? Why not instead consider each proposed expansion of the state on a case by case basis, supporting those that “work” and opposing any that don’t?

Taken seriously, this argument leads to the rejection of any systematic constraints on government power. Why should we have a general presumption against government regulation of speech or religion? Why not instead support censorship when it “works” by improving the marketplace of ideas, and oppose it when it doesn’t? Think of all the misleading speech and religious charlatans that government regulation could potentially save us from!....

But, as Somin surely knows, this argument is more than “taken seriously” by liberals today. Indeed, they assert and affirm it vigorously, even to the point of arguing that government should regulate speech in a way that restricts the speech of the powerful in order to enhance the speech of the less powerful.

As long ago as 2002 I noted (here):

From John Stuart Mill on one of the central commitments of liberalism was to free speech. Insofar as American liberals have had a religion, one of its central tenets had always been the sanctity of the First Amendment's free speech protections. In the late 20th Century, however, much of mainstream liberalism turned away from that formerly firm conviction. Feminists favored laws against pornography. Civil rights advocates favored punishment of hate speech. Campaign finance law reformers even favored limitations on political speech, and leading liberal academics (Owen Fiss at Yale, Cass Sunstein at Chicago) began to argue that the speech of some should be limited so that the speech of others could be enhanced....

Similarly, I began a post in 2006 on “The Degradation of American Liberalism” by quoting the following from a George Will column:

For several decades in America, the aim of much of the jurisprudential thought about the First Amendment’s free-speech provision has been to justify contracting its protections. Freedom of speech is increasingly “balanced” against “competing values.” As a result, it is whittled down, often by seemingly innocuous increments, to a minor constitutional afterthought.

On campuses, speech codes have abridged the right of free expression to protect the right -- for such it has become -- of certain preferred groups to not be offended. The NCAA is truncating the right of some schools to express their identity using mascots deemed “insensitive” to the feelings of this or that grievance group. Campaign finance laws ration the amount and control the timing and content of political speech. The right to free political speech is now “balanced” against society’s interest in leveling the political playing field, or elevating the tone of civic discourse, or enabling politicians to spend less time soliciting contributions, or allowing candidates to control the content of their campaigns, or dispelling the “appearance” of corruption, etc.

To protect the fragile flower of womanhood, a judge has ruled that use of gender-based terms such as “foreman” or “draftsman” could create a “hostile environment” and hence constitute sexual harassment. To improve all of us, people with various agendas are itching to get government to regulate speech of this or that sort.

I then added that I thought Will’s argument

could, and thus should, have been even stronger. For the past generation the best and brightest liberal scholars — especially but not limited to those teaching in law schools — have been hard at work creating, developing, and refining highly sophisticated theories to justify restrictions on speech (see, for example, books by Owen Fiss at Yale and Cass Sunstein at Chicago)....

Here’s an earlier Will column making the same points, with criticism of “a symptomatic new book, ‘Republic.Com,’ by University of Chicago law professor Cass Sunstein.

Sunstein, who is now at Harvard and who has famously called for “a New Deal for Free Speech” that would regulate speech for purposes, and in ways, similar to the way the old New Deal pioneered regulation of the economy, has recently been selected by President Obama to head the very influential Office of Information and Regulatory Affairs.

In his new position, Sunstein will oversee reform of regulations, seeking to find smarter approaches and better results in health, environment and other domestic areas, a transition source said.

The office Sunstein will head is part of the Office of Management and Budget and is responsible for reviewing draft regulations and overseeing the implementation of government-wide policies aimed at making federal agencies more efficient, according to the mission statement on its Web site.

Hold onto your old First Amendment!

Posted by John Rosenberg at 10:51 PM | Permalink | Say What? (3) | TrackBacks (0)

Ever wonder what a “Diversity Provost” does? Purdue University, which is looking for one, apparently isn’t too sure (HatTip to a vigilant reader).

Purdue University invites nominations and applications for the position of Vice Provost for Diversity and Inclusion (VPDI). This position was created as part of the New Synergies Strategic Plan and seeks to recruit a visionary leader to foster a climate that embraces and promotes diversity, broadly defined. The Vice Provost for Diversity and Inclusion will be Chief Diversity Officer of the University, serve as a member of the President’s Cabinet and report to the Provost. As Chief Diversity Officer, the VPDI will represent the President and the entire university community to external organizations on matters of diversity and inclusion.

It’s nice to know that the new VPDI is one of the “New Synergies Strategic Plan,” will of course be a “visionary” (yes, but what is the vision?), and will “foster a climate that embraces and promotes diversity, broadly defined.” But what exactly does “foster a climate” mean? Can climates really embrace and promote anything? And wouldn’t it be a good idea to define “diversity,” even narrowly, before trying to create a climate that embraces and promotes it “broadly defined”?

Not satisfied with the presumably narrow sort of cultural competence outlined above, Purdue goes on to emphasize that the new “VPDI will work collaboratively with Vice Presidents, Deans, Directors and other campus leaders to enhance the campus culture for all.”

Culture seems to be big at Purdue. And how, exactly, will the new VPDI bring about all this cultural promoting and embracing and enhancing? Easy:

Using the metrics on diversity set forth in the Strategic Plan, the successful candidate will work with academic units to help them achieve defined goals and measure success in increasing diversity and inclusion (i.e., see that all quotas are met). The VPDI will be responsible for leading efforts to conceptualize, define, assess, nurture, and cultivate diversity as an institutional value and educational priority. The VPDI will also coordinate educational efforts to foster a climate of inclusion for the campus community. The VPDI will be directly responsible for the Diversity Resource Office, ethnic cultural centers and their programs, and the Women’s Resource Office.

Well, I guess that answers all our questions, although I suppose there’s still the mystery of why a university would hire someone to foster, promote, enhance, and embrace something that still needs to be defined.

Posted by John Rosenberg at 11:18 PM | Permalink | Say What? (0) | TrackBacks (0)

Referring to a host of Inaugural balls that sported exclusive VIP sections, Mickey Kaus asked, “how can a party claim to want all Americans treated equally if, you know, the party doesn't treat them equally?”

Easy. The same way a party can claim to oppose quotas but require them in the selection and seating of delegates to its presidential nominating conventions, not to mention statements such as this one by the nominee of its last convention.

Posted by John Rosenberg at 11:14 PM | Permalink | Say What? (0) | TrackBacks (0)

Ernest Istook, who describes himself in this interesting piece (HatTip to Roger Clegg) as “now recovering after 14 years in Congress,” has some good advice for President Obama.

What began as affirmative action has transformed into reverse discrimination. Obama’s unique background gives him undeniable credibility to confront and correct this, and he’s dropped hints that he might consider it....

Yesterday’s laws and structures cannot create the racial neutrality that civil rights laws claim as our goal. They too often create resentment among whites while tainting many minority members with an appearance that their success is based on special treatment rather than merit (“the soft bigotry of low expectations”).

We can never produce equality by promoting inequality. In the 2003 Bollinger decision over law school admission, former Justice Sandra Day O’Connor wrote for a 5-4 majority, "Race-conscious admissions policies must be limited in time." She suggested 25 years as the outer limit. Might the court have decided differently if they’d known we would have a black President within five years?

“Dropped” is probably a good way to describe the faint “hints” that Obama has given of his willingness to reconsider race-based preferences. Still, Istook is right: he should pick them up, dust them off, and implement them. There are worse building blocks for Obama’s legacy than being known as the president who restored racial equality.

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An academic friend who prefers to remain anonymous (you would, too, if you taught where he does) pointed me to a new report, Improving Judicial Diversity, recently published by the Brennan Center for Justice at the NYU Law School. Given the degree of diversity of political opinion in most elite law schools like NYU, you will have already confidently (and accurately) predicted that the report finds a woeful lack of “diversity” among state court judges.

“The United States is more diverse than ever,” the press release describing the report begins,

but its state judges are not. While we recognize that citizens are entitled to a jury of their peers who will be drawn from a pool that reflects the surrounding community, Americans who enter the courtroom often face a predictable presence on the bench: a white male...

Most of the legal disputes adjudicated in America are heard in state courts. As such, they must serve a broad range of constituencies and an increasingly diverse public. So why are state judiciaries consistently less diverse than the communities they serve? Unfortunately, studies show that both merit selection systems and judicial elections are equally challenged when it comes to creating diversity.

Apparently even those voters who just magisterially elected the first black president still stubbornly refuse to elect enough “diverse” judges, mirroring the failure of judicial selection commissions.

The authors studied the courts of ten states, and their findings in Rhode Island were typical:

Rhode Island’s population is 21% non-white. Not withstanding the statutory requirement that the governor and nominating Commissions encourage diversity on the appointing Commissions, it has no minority Supreme Court justices and minorities hold only two of the 22 judgeships on the Superior Court.

According to the report’s authors, “[t]he problem is clear”:

even after years of women and minorities making strides in the legal profession, white men continue to hold a disproportionate share of judicial seats compared with their share of the general population. The question of why this pattern persists does not have an easy answer; the dynamic is created by the intersection of a number of complex factors.

Much of the report is taken up with suggesting methods to “fix” this “situation,” such as their their first and seventh proposals:

1. Grapple fully with implicit bias. Cognitive scientists have focused attention on the widespread tendency to unwittingly harbor implicit bias against disadvantaged groups. Fortunately, these biases are mutable. Thus, by acknowledging that this tendency exists, Commissions can take steps to counteract their biases.

7. Create diverse Commissions by statute. A diverse Commission, for various reasons, is more likely to facilitate a more diverse applicant pool. States should adopt statutes that clearly encourage a diverse Commission.

I don’t mean to suggest that grappling, even “fully,” with biases of which judicial selection commissions and voters are unaware is a bad idea. No one should “unwittingly harbor implicit bias” against anyone or any group. Indeed, I firmly believe that we’d no doubt all be better off if all our biases were witting and explicit. And I’m sure I would be regarded as churlish if I paused here to point out that statutes creating “diverse” judicial selection commissions would, or at least should, be struck down as exactly the sort of quotas that “diversity” mongers usually insist they oppose. But, for today at least, but I’m more concerned with the problem than the solutions. It may be “clear” to the Brennan Center, but it’s not to me.

Exactly why, for example, should all racial and ethnic groups be proportionately represented on the bench? Why should the same standards of proportional representation be applied to judges and juries? Is the quality of justice strained if a black plaintiff or defendant appears before a white or Asian judge? Can a white complain that he was not judged by a judge from among his peers if he is judged by a black judge? Is there really a problem if Asians appear before a Hispanic judge, or Hispanics before an Asian?

There is no better place to explore these and other troubling questions than in a source that, true to form, asks none of them: a column in a major newspaper that, enthusiastically endorsing the Brennan Center report, laments the lack of “diversity” among judges in its state, Rhode Island. Never mind that the columnist, Edward Fitzpatrick, is white but doesn’t lambaste his own employer, the Providence Journal, for not hiring a more “diverse” columnist in his place.

Fitzpatrick begins, inauspiciously, by arguing that Rhode Island Gov. Carcieri should “follow the example set by the embattled Illinois governor,” Rod Blagojevich, and “take diversity into consideration as he nominates judges to the seven state court seats that are vacant or about to become vacant....” And then the nod to the Brennan Center report:

“The 2008 election opened a new chapter in the great American story,” Brennan Center Executive Director Michael Waldman wrote, noting we elected our first African-American president and a woman was the Republican vice presidential candidate. “Yet, in state after state, the diversity of judges lags far behind the general population. Too many states have all-white Supreme Court judicial benches, and women remain sorely underrepresented.”

Again, why? That is, why does Fitzpatrick think it important for race, ethnic, sex (and religious?) groups to be “represented” fairly among Rhode Island’s judges?

... [w]e should strive for a diverse bench because, as the report says, “a diversity of viewpoints will produce a more robust jurisprudence and because it will enhance the legitimacy of our system of justice in the eyes of an increasingly diverse public.” The report quotes the late U.S. Supreme Court Justice Lewis F. Powell Jr. as saying, “a member of a previously excluded group can bring insights to the court that the rest of its members lack.”

Is anyone now “excluded” from serving as a judge because of race, sex, or ethnicity? But the real zinger here is the claim that “diverse” judges “will produce a more robust jurisprudence.” What is “a more robust jurisprudence”? Is a “more robust jurisprudence” more just than a less robust jurisprudence, whatever that might be?

“Diversity,” keep in mind, is justified by its proponents because “diverse” individuals are different in important, relevant ways from individuals who are not “diverse” — that’s why the latter need to be exposed to the former. But do we really want to institute what amounts to a quota system for judges based on the assumption that the quality and nature of the justice they dispense will vary based on their race, ethnicity, or sex? Without that assumption, however, what is the justification for “diversity” on the bench?

Posted by John Rosenberg at 12:20 PM | Permalink | Say What? (2) | TrackBacks (0)

Yesterday I discussed (here) what I termed a few “Sensible Prescriptions For Change We Can Believe In” that Roger Clegg, president and general counsel of the Center for Equal Opportunity, had posted on National Review Online.

NRO’s John Derbyshire posted some surprisingly lame criticism’s of Clegg’s comments here, and Clegg posted an unsurprisingly strong reply here.

Sunday the Philadelphia Inquirer will publish a longer version of Clegg’s comments, but I am happy to report that Clegg has agreed to publish the full, complete, unexpurgated version below, thus confirming DISCRIMINATIONS as the blog of record for all matters discriminatory in nature. (Wait, that doesn’t sound right....)

RACE RELATIONS, 2009
By Roger Clegg

For obvious reasons, this is a good time to take a step back and think about what remains to be done to improve race relations in the United States of America.

I’m going to limit my discussion to African Americans here, for a few reasons. The inauguration of Barack Obama makes this the logical focus; discussing all racial and ethnic groups would be rather unwieldy; and the problems with respect to African Americans are the longest standing (except for American Indians) and remain the most difficult. Indeed, the fact of the matter is that, if we had to deal only with the (nonimmigration) issues raised by Latinos, Asians, and Arab Americans, the issue of race relations would barely be on the public policy radar screen.

But before we can discuss what can be done to improve race relations, it makes sense to ask first where, ideally, we would like to end up. A realistic goal would be for being black to be roughly analogous to being Irish. That is, we don’t expect people to be literally colorblind, and we don’t demand that people ignore or forget about their Irish or African American roots. It’s perfectly fine to celebrate that heritage, but the celebration ought to be a relatively minor part of one’s makeup, no one should be discriminated against on account of this ethnicity, and of course any formal legal distinction on this basis ought to be forbidden.

Okay, now in what respects do we fall short of this ideal, and what can we do to reach it?

In terms of any legal distinctions in treatment, we are already there (with the important exception of racial preferences--a.k.a. affirmative action--discussed later). That is, the government at any level is not allowed to treat people differently on the basis of skin color, and in fact it is illegal to do so in most publicly transacted private matters as well: employment, housing, public accommodations, you name it.

Rather, the problems that might be identified are twofold. First, while we have made huge progress over the last half century, there are still individuals who harbor racial bias and who, therefore, engage in racial discrimination. Second, it is troubling that there are a disproportionately high number of African Americans clustered at the bottom rungs of the socioeconomic ladder and a disproportionately low number at the upper end.

What can we do about individual bias and discrimination? Well, as discussed, one thing we have already done is make it illegal to discriminate on the basis of race in most public transactions. Our society has also made it socially unacceptable to be a bigot. Not only our laws but our popular culture condemn racial discrimination.

But of course the root task is to persuade people that they are wrong to think that African Americans are in some way inferior in the first place. For that, the aforementioned racial stratification is a problem. That is, the reason for bigotry today is not that it is taught by the government or in school or even at one’s mother’s knee, but that the bigots observe the disproportionate number of African Americans who are poor or jobless or in prison or whatever, and conclude that there is something wrong with the whole race. This is unfortunate, but so long as these disproportions occur, it will happen.

So, how do we address the racial stratification? Once again, one of the ways is to ensure that African Americans do not face racial discrimination that makes it difficult for them to rise. As I said before, that’s being done.

Another, more important task in 2009 is to improve black culture--or, more precisely, some parts of it--most obviously by addressing the fact that seven out of ten African Americans are born out of wedlock. It is illegitimacy that results in the bunching of black people in poverty and unemployment and prison, as well as having the next generation of children also out of wedlock, perpetuating this cycle.

Fix that problem, and there won’t be much left to improving race relations.

* * *

I promised to discuss racial preferences. Classifying people according to skin color and what country their ancestors came from, and treating some better and others worse depending on which box they check, is obviously discrimination and obviously undesirable for the long-term harmony of an increasingly multiracial and multiethnic country. Sometimes this politically correct discrimination is even aimed at members of minority groups, including African Americans.

To a large extent, indeed, any policy discussion is moot, since the Supreme Court has (quite rightly) rejected the broad use of racial preferences of any sort. The use of the remedial rationale must be justified at a particular government agency or company, rather than as a means to address societal wrongs, let alone mere racial imbalances.

But, even as a policy matter, is it plausible that racial preferences improve race relations at any place in the discussion above? For instance, do they diminish bigotry? Hardly: They encourage it, by fostering resentment and apparently confirming the suspicion that blacks are incapable of competing without special help. Do they improve black culture by, in particular, discouraging illegitimacy? It’s hard to see how.

Ah, but does it do something about that racial stratification--the disproportionately high number of African Americans at the bottom of the ladder and low number at the top?

Actually, it’s unlikely that they do, in the short run or, especially, in the long run. Racial preference programs stigmatize African Americans--in their own eyes and in the eyes of their classmates, teachers, coworkers, clients, and customers. As John McWhorter has noted, they also encourage separatism, create disincentives to trying one’s best, and encourage a victim mindset. What’s more, they paper over the real problems that ought to be addressed--like illegitimacy--and thus make it less likely that they will in fact be addressed. Finally, by mismatching individuals and institutions, they set the former up for failure; thus, as Professor Richard Sander of UCLA law school has demonstrated, racial preferences in admission to law school have actually resulted in there being fewer African American lawyers than had those preferences never been used in the first place. All of this impedes African American progress.

It’s impossible to conclude that, in 2009, racial preferences are anything but a big, net minus for racial relations.

* * *

So there’s a lot to be happy about in the New Year here. Race relations are good--have never been better. The most important elements to further improvement are already in place: A legal regime that is antidiscrimination and a popular culture that condemns bigotry. Did I mention that Americans have elected an African American president?

And, partly on that account, there is hope regarding the two major impediments to further improving race relations. The president-elect has already encouraged African Americans to follow the Obamas’ lead when it comes to family and child-rearing. It would also be heartening if he would follow the logic of his own words--that his daughters probably shouldn’t get preferences, and that poor nonminorities probably should--and transform racial preferences into programs that help disadvantaged individuals of all colors.

Posted by John Rosenberg at 4:10 PM | Permalink | Say What? (2) | TrackBacks (0)

Because of my daily wanderings through the museum of contemporary liberalism — especially its attitudes regarding race, discrimination, etc. (whose ever-changing but always familiar exhibits are on display in politics and in the mainstream, academic, and specialized media), I have long since lost whatever capacity I might have had in the past to be shocked or surprised by even the strangest and most outlandish artifacts produced by this increasingly alien culture as it strays farther and farther from traditional American values.

But every now and then I stumble upon an argument or analysis so bizarre that I actually find it encouraging, revealing as it does that I have not yet altogether lost the capacity for surprise, shock, and even bemusement. Such an article (or, more precisely, an article that lays the groundwork for and offers at least implicit support for such an argument) appears online today in the Chronicle of Higher Education, “It’s Not All About Class Size,” by Stephen J. Ceci, a professor of developmental psychology at Cornell University, and Spyros Konstantopoulos, an assistant professor of educational research, measurement, and evaluation at Boston College. This article is, sadly, so representative of a major strain of contemporary liberal thought that it would be worth your while to find it in hard copy if you can’t read it online: it is in the “Commentary” section of Vol. 55, Issue No. 21, Page A30 (January 30, 2009).

Noting that

[o]ur students’ test scores lag behind those of our international trading partners, and our top students in math and science fall far behind the top European and East Asian students who will be the next generation of engineers, scientists, innovators, and business leaders

and that President Obama promised during the campaign to reverse that trend and improve our schools, Professors Ceci and Konstantopoulos point to research that, at first blush, seems to promise a means of fulfilling those promises.

“Many studies,” they point out,

have shown the benefits of smaller class sizes — including random experiments like the Student Teacher Achievement Ratio Project conducted in 79 elementary schools in Tennessee, which assigned children to either small or regular-size classes, as well as large-scale analyses of small and large classrooms that have occurred naturally. Although researchers may quibble over the exact magnitude of gains associated with smaller classes — or the means by which small classes bring about such gains — few of them disagree with the basic fact that smaller classes result in higher average achievement.

By reducing elementary-school classes from 23 students to 15, achievement, as measured by standardized exams like the Stanford Achievement Test, increases about 7 percent on average. And the longer students are in smaller classes, the greater their achievement gain is.

Good news, no? Well, no, at least according to Ceci and Konstantopoulos, or at least not unalloyed good news. To put it another way, while many observers may see the potential of reducing class size as a silver lining of sorts, Ceci’s and Konstantopoulos’s purpose is to call our attention to the dark cloud surrounding it.

“What if,” they ask,

rather than closing America’s international achievement gap, our nation’s leaders had a different education goal in mind: to reduce our domestic achievement gap, the one that separates black and white, rich and poor? In fact, our new president has pledged to do just that. Will reducing class size accomplish that goal, too? Will smaller classes raise the achievement levels of the poorest-performing students — those who are disproportionately minority and low income?

The signs are that it will not. In fact, it is possible that smaller classes will actually widen the domestic achievement gap between the haves and have-nots.

.... many educational interventions, like reductions in class size, don’t just increase the average achievement for all groups of students. They also increase the variability in achievement. In other words, children become more dissimilar as a result of the intervention; their scores spread further away from one another. That greater variability can be seen among children in the same classroom, or among children in different schools and school districts.

Reductions in class size show that effect dramatically: Even as all children gain from being in smaller classes, the “haves” often gain more than the “have-nots.” In fact, when placed in smaller classes, children in the top 10 percent of the score distribution often gain two to four times more than those in the bottom 10 percent. The result is that even though all students make gains in smaller classes — including the lowest-scoring students — the highest-scoring students make bigger gains.

The net result can be a widening of the achievement gap between rich and poor students, and between minority and nonminority students. So, as class-size reduction helps our top students gain ground on the top students in other countries, it also helps further distance them from our own lowest-scoring students, exacerbating an achievement gap that is already large to begin with.

Now, in fairness to Professors Ceci and Konstantopoulos, they do not actually oppose measures to reduce class size. And they certainly should not be blamed for pointing to research indicating that there is “a trade-off” to reducing the size of classes.

It behooves President Obama and Congress to ponder such research results as they begin to make good on their campaign promises to fix America’s schools. It may be possible over a long horizon to close both the domestic and international achievement gaps. But, in the near term, it is not likely to be accomplished by the universalization of interventions like as [sic] class-size reduction....

I can see the argument that all this is sensible advice, and it is certainly true that policymakers should consider as many of the effects of their policies as possible. But what I see primarily, and what I suspect most liberals and their friends in the educational bureaucracy will see, is the argument that any policy that helps everyone but helps the bright or industrious more than it helps others is unfair.

It is the educational equivalent of the liberal economic argument that tax cuts that give something to everyone but more to those who pay more taxes are unfair.

Posted by John Rosenberg at 3:35 PM | Permalink | Say What? (1) | TrackBacks (0)

Roger Clegg writes today that “[a] realistic goal” for our race relations “would be for being black to be roughly analogous to being Irish.”

Now, if I didn’t know and admire Roger I would worry about that prescription. I would worry that he meant that Irish-Americans (and, by extension, Luso-Americans, Jews, Catholics, etc.) should be given all the preferences now extended to blacks and Hispanics in education, hiring, etc.

But not to worry. He doesn’t mean that. What he means is that

we don’t expect people to be literally colorblind ... , we don’t demand that people ignore their Irish or African American roots. It’s perfectly fine to celebrate that heritage, but the celebration ought to be a relatively minor part of one’s makeup, no one should be discriminated against on account of this ethnicity, and of course any formal legal distinction on this basis ought to be forbidden....

Classifying people according to skin color and what country their ancestors came from, and treating some better and others worse depending on which box they check, is obviously discrimination and obviously undesirable for the long-term harmony of an increasingly multiracial and multiethnic country. Racial preferences don’t diminish bigotry. Rather, they encourage it, by fostering resentment. What’s more, they paper over the real problems—like illegitimacy—and thus make it less likely that they will be addressed.

So, in the famous words of one of President Obama’s former mentor’s ideological forebears, What Is To Be Done? Well, we can at least hope (or, if you’re a Democrat, HOPE!):

Americans have elected an African American president. Partly on that account, there is hope regarding the remaining impediments to progress. The president has already encouraged African Americans to follow the Obamas’ lead when it comes to family and child-rearing. It would also be heartening if he would follow the logic of something he once said, to the effect that his daughters probably shouldn’t get preferences, and that poor non-minorities probably should. He could scrap the counterproductive system of racial preferences, and transform it into programs that help disadvantaged individuals of all colors.

Yes, that would be heartening indeed — as heartening, in fact, as it would be surprising.

Posted by John Rosenberg at 1:37 PM | Permalink | Say What? (0) | TrackBacks (0)

The following is a Guest Post from Roger Clegg, president and general counsel of the Center For Equal Opportunity.

NOW THAT BARACK OBAMA IS PRESIDENT, MAY WE PLEASE STOP THE BEAN-COUNTING?

The Washington Post had an editorial last month, “Bean Counting, 2008,” about the relative ease with which President-elect Obama is putting together an administration that “look[s] like America” — to quote, as the Post does, Bill Clinton’s promise to do so when he was President-elect. Gone unanswered in the editorial is why we should care about the racial/ethnic/gender makeup of the new political appointees in the first place. A couple of weeks later, The Los Angeles Times praised Obama for choosing a cabinet that passes the twin tests of “the quality of the appointees” and “identity politics,” acknowledging that there is some tension between the two, and that, while both are important, the former is somewhat more so.

Some of this bean-counting may be inevitable, but it has gotten worse and worse in recent years, and the time has come to stop it.

Nor is this bean-counting limited to new presidential administrations, of course. We see it asserted frequently that a city’s public workforce ought to look like the rest of the city, and that a company’s workforce ought to look like its customer base, and that a state university’s student body ought to look like the state as a whole. Of course, this is always part of an argument for why there needs to be more of this or that racial/ethnic/gender group, and that means “goals,” and that means quotas.

But why exactly is all this mirroring needed? That’s usually never explained.

(Permit me a long parenthetical here: Sometimes — in the specific context of schoolteachers in particular — you’ll hear the justification that K-12 faculty should look like K-12 students because the latter need the role models provided by the former. But that’s only if the school district has a lousy lawyer. The Supreme Court flatly rejected the role model rationale over twenty years ago, in Wygant v. Jackson Board of Education (1986). A decade before that, in Hazelwood School District v. United States (1977), the Court had similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty. Justice Powell wrote in Wygant, “Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.”)

Employment-discrimination experts will admit that what matters, even if you like the bean-counting approach, is not the demographics of the general population, but the demographics of the folks actually applying for jobs. [Editorial emendation: Actually, as I’m sure Clegg would have said if he weren’t needlessly worried about taking up too much DISCRIMINATIONS bandwidth, the crucial demographics are not limited to who actually applies; the relevant “pool” is usually thought to comprise those who are available, interested (both of which might be indicated by applying), and qualified.]

But the Obama bean-counting is probably motivated less by legal considerations and more by politics. And I suppose that there would be some political costs to announcing an all-star Cabinet where, alas, there are only Latvian-Americans and no Latinos at all. But even if a politician lacks the gumption to be willing to pay those costs, how likely is it that most people — the professional complainers in the grievance industry aside — care about hiring other than the very best once you get below the photo-op level?

Why does the administration need to look like America? Why do employees need to look like their customers? Why do the bureaucrats at the District of Columbia DMV need to look like a cross-section of the District of Columbia?

It makes just as much sense, and sounds even nicer, to say: “Our DMV should look like America,” and “Our company should look like the world,” or even “Our government should look like the universe, including the planet Twilo.” Well, maybe not that last part, but everything up to that.

Here’s my summary, tongue only partly in cheek, for why we are told that a diverse workforce is essential: People who are one color are really quite fundamentally different from people who are another color. For instance, people of one color like to be treated decently, while, unbeknownst to the rest of us, people of other colors do not or are indifferent. Knowing this is called “cultural competence.” What’s more, different groups have different knowledge: Some racial groups are statistically more likely to know about chemistry, and others to know about dancing, and some can speak Spanish. Rather than simply come right out and ask an applicant what he or she knows about, we are better off using race or ethnicity or sex as a proxy for expertise in certain areas. But this is not stereotyping. Anyhow, bottom line: We have to make sure that all the colors get mixed in with just the right proportions, or otherwise the government might not do the things or know the things we want it to in just the right proportions either.

In other words, nonsense on stilts.

Of course, we also have here the usual problem that, if we don’t want any group to be under-represented, then it follows as the night the day that we don’t want any group to be over-represented either. Stay away, you excess white males, and especially you overachieving Democratic Jews, of any and all genders.

So here’s my bottom line: For a variety of reasons, the mix of people who are willing to work for the federal government, and are best qualified to do so, may not turn out to be exactly the same as the mix in the general population. For all I know, it might, but it also might not. My point is, it doesn’t matter.

Discriminating to ensure that it does is unfair, silly, and harmful. Whenever the government is distracted from looking for anyone other than the best possible appointee, it is in the end the taxpayers who will pay the price. Hire by content of character, not color of skin.

And this, of course, is true not just for the Obama administration, but for the District of Columbia DMV and the XYZ Corporation. The bean-counting that we have to go through with every administration sets a bad example for our other employers. And what better time to stop it than now, with an African American president who was put there by voters, not bean-counters?

If a job needs to be done — and, to be sure, when you talk about the federal bureaucracy, that’s a big “if” — then wouldn’t most Americans just rather have it done by the best qualified person? If the price of having a government that looks like me is that I get blown up in my sleep, then I’m happy for the government to look like someone else.

Editorial Postscript: It has often been observed by hard-edged realists, quoting shamelessly (and usually unwittingly) from the famous Finley Peter Dunne, that “politics ain’t bean bag,” but, for liberals, and even some misguided Republicans, it is often bean counting. Of course, cynical critics will no doubt say that Clegg and I oppose such practices only because we aren’t beans.

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Mark Tooley, who directs the United Methodist Church program at the Institute on Religion and Democracy, asks, “Where Will The Obamas Worship?” His answer seems to be, at the site that, “after careful political contemplations,” sees the most politically efficacious.

Where will President Barack Obama attend church in Washington? Thanks to revelations about the Rev. Jeremiah Wright, his former pastor at Trinity United Church of Christ (UCC) in Chicago, Mr. Obama’s church shopping requires more careful political contemplation than a new president typically needs. But his ultimate choice likely will be a noncontroversial church, suitable for young children, with a brief commute and tightly scheduled worship that gets the president back home early on Sunday mornings.

Tooley does not make clear why the sort of church that apparently was “suitable for young children” in Chicago would presumably not be suitable in Washington.

There were some other interesting observations. For example, after a discussions of Rev. Wright and the United Church of Christ, Tooley notes:

Mr. Obama’s early Chicago activism took him to Trinity. At an altar call, he professed faith in Christ. Trinity is a black congregation within the nearly all white 1.2 million United Church of Christ. Although it originated with New England’s Puritans, the UCC has mostly shed its strict Calvinism of past centuries and arguably is America’s most liberal mainline Protestant denomination.

A UCC church in Washington could be a comfortable fit for a former member of Chicago’s Trinity. Trinity’s social liberalism -- on issues of gay rights and abortion rights, for instance -- is more like that of other UCC congregations than of historically black denominations, which typically are theologically conservative. The 2.5 million member African Methodist Episcopal Church, for instance, voted unanimously in 2004 to prohibit same-sex unions. Pastor Wright’s flamboyant preaching style echoes that seen in many black churches. But his radicalized Social Gospel more resembles that of white mainline Protestants.

“All this suggests,” at least to Mr. Tooley, that

Mr. Obama could choose one of the UCC’s seven churches in the nation’s capital, two of which are predominantly black. Or, will he gravitate instead to one of the city’s historically black denominations in a majority black city? Whatever denomination attracts him, will he choose a white or racially diverse church?

This racial classification of churches gets pretty confusing, perhaps even to Mr. Tooley, who asks later on: but what “[i]f Mr. Obama prefers a black congregation”?

Does this mean that a white church with some blacks is not “racially diverse” but a black church with some whites is? Is “a black congregation” all black? If it’s not, is it then “racially diverse”?

Perhaps the most troubling item in Mr. Tooley’s discussion was a quote from a 2004 interview in which “Mr. Obama defined sin as ‘being out of alignment with my values.’”

I confess: by that definition, I’m a sinner.

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Inside Higher Ed discusses yet another study finding that eliminating affirmative action would be bad bad bad.

The authors, economists and a business school professor, applying no doubt sophisticated statistical techniques, found (sit down and prepare yourself for a shock) that eliminating racial preferences would lead to a “dramatic [35%] drop in the enrollment of students from underrepresented minority groups at the most competitive colleges.” Can you believe it?

In the same vein, and equally shocking, the authors found that

[i]f affirmative action is eliminated ... there would be an increase in minority average SAT scores among less competitive colleges because some students who would otherwise have gained admission to competitive colleges would enroll elsewhere.

Well, we can’t have that, can we?

There’s more, but you’ll have to read the Inside Higher Ed article, or the study itself, to get it. While you’re at it, be sure to read the comments to the former. Some of them are quite good. Some, like a couple from Jay Rosner, Executive Director of the Princeton Review Foundation, simply (and I do mean simply) repeat the “Race matters!” mantra. And some, such as this excerpt from one by Roger Clegg, are brilliant:

... even if there are some dubious benefits to the use of racial preferences, they are overwhelmed by the costs: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school; it encourages a scofflaw attitude among college officials; it mismatches students and institutions, guaranteeing failure for many of the former; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership.

Rosner’s response to the above? An attack on ... the Bush administration.

Lawyers have long been advised to argue the law if their facts are weak and to argue the facts if their law is weak. Now we have what might be called the Liberal Corollary to that sage advice: When your argument is weak, attack Bush.

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Howard Kurtz of the Washington Post is worried (and he claims others are worried) that too many members of the Washington press corps look like him. He probably doesn’t mean that they’re not Hollywood-handsome, or even that too many of them are Jewish (which I assume he is, and if he hasn’t checked to see how many Jews there are, how can he be sure that’s not what he calls a “cause for concern”?). He means that not enough of them are black.

Eight days before Barack Obama is sworn in, the relative paucity of black journalists at the White House is striking. A mostly white press corps at 1600 Pennsylvania would be cause for concern no matter what the color of the Oval Office occupant. But the advent of the Obama administration seems to underscore that racial progress has been uneven in a business that chronicles that very subject.

While there are some exceptions, most major news outlets that regularly chronicle the White House do not have a minority reporter on this, Washington’s most visible beat.

So, “racial progress” requires more black White House reporters? Why? In fact, since there is a finite pool of talented blacks (as of every racial group) and since it is inescapably true that every single black who decides to become a reporter thereby decides not to become something else, in Kurtz’s view it must be true that “racial progress” in White House reporting must mean racial regress, or stasis, in some other field.

If you regard the above point as silly, or trivial (I don’t), you need look no further than this column by Jeff Jacoby in the Boston Globe to find Kurtz’s krap sliced, diced, and skewered. “Barack Obama will face a sobering array of problems when he takes office as the nation's 44th president,” Jacoby writes, “but the color of the reporters who will be covering him is not one of them.”

“Why should it matter to anyone but a racist whether a White House reporter is black or white?” he continues.

Well, says Michael Fletcher, a colleague of Kurtz’s, “you would want to have black journalists there to bring a different racial sensibility.” By the same token, more evangelical journalists would presumably bring a different religious sensibility to the White House, more journalists from the Deep South would bring a different regional sensibility, and more Republican journalists would bring a different political sensibility. Do you know of any news organizations that are fretting over the “relative paucity” of evangelicals, Southerners, or Republicans on their payrolls? Me neither.

There is no shortage of people like Kurtz who believe their profession (and, of course, the greater good that it serves) suffers from its paucity of “people of color.” Yet, oddly, there is a massive shortage of resignations by such people to make room for the minorities they miss.

Here’s a closing thought experiment: if some of those Kurtzian “people of no color” who lament the woeful lack of “racial progress” in their field were fired so that they could be replaced by a “person of color,” would they praise their former bosses for the justice of their dismissal ... or develop a new appreciation for the principle that no one should be burdened or benefited because of his race?

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The Supreme Court has agreed to hear Ricci v. DeStefano, the Los Angeles Times reports today. New Haven, Connecticut,

seeking to maintain diversity in its fire department, scrapped a civil-service test after it became clear the white firefighters had the best scores. This would have meant nearly all the promotions would have gone to whites, not blacks.

The white firefighters sued and said they had been victims of “race politics” in the New Haven city government. They urged the justices to rule that the Constitution and federal civil rights law requires employers to use a “race neutral selection process.”

In ruling against the white applicants, lower-court judges said employers had a duty to avoid tests or standards that would leave minorities at a disadvantage.

Ilya Somin discusses this case on Volokh, here, a post that has provoked some interesting comments. Read them all, but, so far, I particularly recommend this one and this one.

UPDATE

Although most of the discussion of Ricci will describe it in black and white terms, it is worth pointing out that one of the 19 New Haven firefighter plaintiffs claiming racial discrimination is Hispanic.

See more on this case by Randy Barnett, pointing to discussions by Ed Whelan here and here describing troubling “Second Circuit Shenanigans,” what a dissent by the respected Clinton appointee Judge José Cabranes suggests was a “judicial effort to bury the firefighters’ claims.”

One of the judges on the three-judge panel whose behavior was severely criticized by Cabranes was Sonia Sotomayor (described by Whelan as “highly controversial—but not highly regarded”), whose name has already appeared on many lists of prospective Obama Supreme Court nominees (such as this one).

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Time Magazine celebrates yet another study arguing that we’re all racist, that if we think we’re not racist we’re wrong, that our efforts to be tolerant crash inexorably against the rocks of our deeply “ingrained” racial biases.

Here’s the abstract of the study from Science:

Contemporary race relations are marked by an apparent paradox: Overt prejudice is strongly condemned, yet acts of blatant racism still frequently occur. We propose that one reason for this inconsistency is that people misunderstand how they would feel and behave after witnessing racism. The present research demonstrates that although people predicted that they would be very upset by a racist act, when people actually experienced this event they showed relatively little emotional distress. Furthermore, people overestimated the degree to which a racist comment would provoke social rejection of the racist. These findings suggest that racism may persevere in part because people who anticipate feeling upset and believe that they will take action may actually respond with indifference when faced with an act of racism.

In other (but fewer) words, racism continues because people believe they are more upset by racism than they really are. The authors conclude (why are we not surprised?) that their “results suggest attitudes so deeply ingrained that protective legislation and affirmative action programs are required to overcome them.” Perhaps some future study will reveal exactly how “protective legislation” (like the “protective legislation” for women that an earlier generation of feminists angrily rejected) and “affirmative action” can “overcome” deeply ingrained racist attitudes.

Read the study in Science if you have a subscription; read the discussion in Time (linked above) if you don’t. Veteran readers of DISCRIMINATIONS will know (and new readers will not be surprised to hear) that I’ve never been impressed by this style of morally pretentious social science whose purpose is to confirm the political biases of its authors, and this one strikes me as even weaker than most.

The study, by researchers at Yale University and York University in Toronto, involved 120 non-black students who were told they were being recruited for an experiment on team-oriented problem-solving. They were broken into three groups. The members of the first group were individually placed in a room with a black actor and a white actor, both posing as fellow participants in the study, and watched as the black actor slightly bumped the white actor while leaving the room. After the black actor left, the white actor played out one of three scenarios, saying, “I hate it when black people do that,” or “Clumsy n-----,” or nothing at all. None of the people in the two other study groups experienced the interactions directly; one group watched them on videotape and the other simply read about them. (See The Cure for Racism.)

After the incident, students were asked to choose one of the two actors — still posing as fellow participants — for the teamwork assignment. Over 80% of the students who watched a racist exchange on video said they would not work with the white student. Those who read about racist behavior showed a similar aversion, with 75% preferring the black actor as a teammate. Participants in both groups said they were deeply upset by the racist comments.

The same did not hold true for the participants who experienced the racist event firsthand. None intervened to correct or disparage the white actor, nor did they report being upset by his comments when questioned later. In fact, 71% of the students chose the white actor as their partner for the assignment when he made a racist comment; a similar percentage chose the white partner when he did not make a racist comment.

I will leave it to readers to draw their own conclusions about what, if anything, this experiment proves, and especially whether it demonstrates the “impact bias of affective forecasting” trumpeted by the study’s authors. But I can’t move on without noting that the subjects of this experiment weren’t even Americans. They were Canadians.

Finally, unimpressed as I am by this study, I am even more scornful of Time’s treatment of it, in no small part because of its opening paragraph:

Abraham Lincoln concluded his first inaugural address in 1861 by expressing confidence that the “better angels” of the American psyche would one day prevail over racism. But as the country prepares to inaugurate its first black president on Jan. 20, new academic evidence suggests that the demons of unconscious racism still hold startlingly powerful sway.

It is sadly apparent from this paragraph that Eben Harrell, the author of the Time article, knows little or nothing about Lincoln, and probably hasn’t even read his First Inaugural address, an address that, in its own terms and for its own time, was deeply impressive but to the modern sensibility “deeply ingrained” in Time’s writers and most of its readers would be, if they read it, profoundly disturbing. And I’m not even referring to Harrell’s almost humorously ahistorical assertion that Lincoln spoke of “the American psyche” as opposed to his actual reference to “our nature.” Anyone presuming to edit Lincoln’s speech needs to take care to keep anachronistic, alien concepts out of it. In fact, Lincoln’s concluding paragraph is one of the masterpieces of American speech, and is worth reading here in its entirety:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

But Harrell’s real crime here is not merely his obtuse, presentist putting modern jargon in Lincoln’s mouth. It is that he fundamentally misrepresents the meaning of Lincoln’s near-mystical reference to “the better angels of our nature,” a reference that had absolutely nothing to do with “confidence” that we “would one day prevail over racism.”

When Lincoln delivered the First Inaugural on March 4, 1861, the Civil War had not yet begun. Seven states had seceded (four more would do so after the attack on Fort Sumter in April), Jefferson Davis had been sworn in as president of the Confederate States of America two weeks earlier, but Lincoln’s speech was a last, eloquent attempt to induce Southerners to turn back from the precipice of separation and war, to remain loyal to the Union.

One can say many things about this speech. Though unsuccessful, it was eloquent (especially that last paragarph); it was a powerful evocation of a mystical nationalism. But one of the things it definitely did not express was a confidence about overcoming racism. Far from it.

In order to persuade Southerners that they had no reason to leave the Union, Lincoln

• reiterated that he had

no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so;

• stated that he had no objection to a proposed Constitutional amendment, already passed by the Congress, “to the effect that the Federal Government shall never interfere with the domestic institutions of the States” [i.e., slavery]. Although he believed there was no need for such an amendment because the Constitution already protected slavery where it existed, he emphasized that he had “no objection to [that guarantee] being made express and irrevocable”;

• pledged his support for continuing enforcement of the Fugitive Slave Act.

Lincoln’s First Inaugural, for all its eloquence, neither expressed nor implied any more “confidence that the ‘better angels’ of the American psyche would one day prevail over racism” than, well, observing how three groups of white Canadian students respond to a racial slur in their presence, on video, or in a report confirms the ongoing need for “protective legislation” and racial preferences for American blacks.

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“There is little legal justification for the Democrats to stop Roland Burris from taking Barack Obama’s Senate seat,” writes Prof. John L. Jackson, the Chronicle of Higher Education’s designated anthropologist and “diverse” commentator. “But just because there’s nothing technically illegal about the nomination (and Burris isn’t one of the people invoked as part of that alleged “pay-to-play” scheme),” he continues,

doesn’t mean that Burris should have accepted it. In fact, I’m shocked that he did.

Who wants to be such an obvious political football for a desperately flung Hail Mary? [Emphasis in original]

It’s been far too long since I’ve commented on one of Prof. Jackson’s race columns (see here, here, here, here, and here), and I hardly know where to start on this one. How about here: if there is no “legal” justification for excluding Burris, and there is nothing “specifically illegal” about his nomination, why be “shocked” (like being shocked by pool in River City or gambling at Rick’s?) that he accepted?

Let’s assume that Blago played the “race card” for his own benieft. So what? Is what he did fundamentally different from university admissions officers and hiring committees playing their own quite clear “race cards” in admissions and hiring?
Does Prof. Jackson mean to say that applicants for college admission, college teaching or administrative positions, or jobs in industry should refuse to accept the preferential hand they’r dealt by whites playing the “race card” for their own benefit?

Prof. Jackson goes on to say that

[i]t should give us all pause, as Americans, to ponder the fact that Obama is the only African-American in the Senate right now....

.... the Senate’s spectacular lack of diversity doesn’t give Burris license to imply that any hesitation to accept Blagojevich’s appointment of an African-American might reek of racism to some voters. If so, the entire Senatorial chamber should already be giving off that aroma.

Exactly why should the absence of black senators “give us all pause, as Americans”? Does that absence and the “aroma” that wafts from the Senate chamber as a result of it mean that, “as Americans,” we must be sure that 12% of the Senators we elect are black to prove we’re not racist? Or perhaps that state lines should be jiggled (and some people resettled to and from them), in the manner of Congressional districts, so that 12% of the states have substantial enough black majorities to elect black senators?

Finally, or almost finally,

If Blagojevich is trying to “play the race card” to save his political life, Burris is dealing from the same deck. And they both should know better.

Really? What should they know that preference-receiving college and job applicants don’t know? Oh, wait. maybe this is it:

Talk about playing “the race card.” Blagojevich looks like the worst kind of cynic in this scenario: someone willing to do anything to save his political life, even if it threatens to spin his party into complete disarray.

What exactly is the difference between the “worst kind” of “race card”-playing cynics and other, every day, run of the mill “race card” players?

The difference is now clear: the “cynics” are the “race card”-players who hurt or embarrass the Democrats.

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They told me that if I voted for John McCain we would have four more years of what candidate Obama decried, in a March 2 2008, interview with the Washington Post, as “the politicization of intelligence in [the Bush] administration.”

They were right.

According to the New Republic last March, Obama

the candidate is throwing his weight behind the idea that the intelligence community (IC) should be an independent assessor of empirically-verifiable facts; that intelligence assessment is a non-ideological exercise in finding out what's true and what's not.

By contrast, Obama the president-elect has thrown his weight behind a CIA director whose only experience is in partisan Democratic politics.

On the other hand, Panetta does at least have more national security experience than ... Barack Obama: “a two-year stint in the mid-1960s as a U.S. Army lieutenant.”

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Madera, California, a city of about 55,000, is more than two-thirds Latino. The Madera Unified School District is 82% Latino. “Yet just one Latino sits on its seven-member school board.”

The predictable result? A lawsuit claiming that the at-large election system for school board members violates the California Voting Rights Act.

This strategy — demanding the replacement of city-wide elections with smaller, neighborhood-based voting districts — was widely used in the South to promote the election of minorities to city councils, county commissions, etc. But what about where the minorities are a majority?

Why can’t a Latino majority elect more Latinos?

The easy answer is that many of the newly arrived immigrants are not U.S. citizens and can’t vote. But Latinos hold a slight majority even among U.S. citizens of voting age.

If the easy answer is wrong, what is the hard answer?

In interviews, several incumbent board members and a member of Madera’s City Council argued that Latinos had effectively marginalized themselves, with too few involved in civic affairs.

“To be honest with you, over the 17 years that I have been on the board . . . there haven’t been that many Hispanics or Latinos who have taken out papers to run,” said Robert Garibay, the lone Latino trustee. It frustrates him, especially when he hears people in the Latino community complain about a lack of representation.

“Where were they?” he asked.

Garibay argued that Latinos were, perhaps, discouraged from running because “they don’t feel that they have a chance.” As a result, he said, “they don’t get involved, for the most part, in community events.” That is the argument made in interviews by the three plaintiffs.

It has often been pointed out — by Abigail Thernstrom, among others — that the federal voting rights act has been interpreted not only to prohibit discrimination against minorities but to guarantee them the right to elect candidates of their choice. In California, however, apparently that is not enough. There, according to state law, minority voters presumably have a right not only to election districts, etc., where they can elect candidates of their choice (such as districts in which they are a majority) but districts where they feel they can win.

Latino voters in Madera, California, are, of course, not the only minorities whose own action, or inaction, deprives them of something valuable. Black students who choose to attend virtually all-black colleges deprive themselves of the “diversity” that their leaders, college administrators, and liberals everywhere insist is absolutely essential to education in and for the modern world. (I’ve argued a number of times — such as here, here, here, and here — that if “diversity” really is as important as its advocates claim, minorities should be drafted to attend “diversity”-deprived institutions, study in “diversity”-underrepresented fields, etc., and, as I argued here, inner city minorities should be shipped to, say, schools in South and North Dakota that are terribly “diversity”-deprived and the Dakotans shipped to Detroit et. al.)

Wait. There’s more. Now come Carol Hoxby, an economist at Stanford, and Christopher Avery, a professor of public policy at Harvard, who argue in a paper recently presented at the American Economic Association convention in San Francisco that

[e]ach year thousands of high-achieving students from low-income families do not apply to selective colleges that would almost certainly accept them....

Most such students do attend college somewhere — often at nonselective institutions where the median SAT score is hundreds of points below their own. But they miss out on the challenging course work and valuable career networks that a selective college might provide. And ironically, they might actually pay more for their education, because some elite colleges now offer extensive financial aid to students from low-income families....

The two scholars used a variety of methods, including block-level census data, to estimate each student’s household income. In their paper they define a family as “low income” if its income is below the 30th percentile, which is around $28,000. They define a student as high-achieving if the student had combined SAT scores above 1200, a high-school grade point average of B-plus or better, and at least one Advanced Placement score of 4 or 5 (or an equivalently high score on an SAT subject-area test).

In one typical recent year, Ms. Hoxby said, there were roughly 21,000 high-achieving students from low-income families. But more than 60 percent of those students did not make any “ambitious applications,” the study found.

Ms. Hoxby and Mr. Avery regarded an application as ambitious if the college’s median combined SAT score was no more than five percentiles below the student’s own score. “Notice that that’s a very broad definition,” Ms. Hoxby said. “I’m not saying that you’re applying to a school where you would be below the median.”

But even under that generous definition, Ms. Hoxby and Mr. Avery found that a large majority of those students did not make any ambitious applications. Instead, they typically applied to nonselective (or only slightly selective) public institutions close to their homes.

I know, I know. You don’t have to say it. Pointing out that there would be more Latinos on school boards if more of them decided to run for election and that there would be more poor minorities in selective colleges if more them applied is just one more conservative, racist (but I repeat myself) example of blaming the victims.

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Back in 2002 Charlottesville was afflicted with a severe drought. Faced with a dangerous water shortage, the city government and community leaders launched a vigorous campaign to promote water conservation, and the good citizens of Charlottesville, devoted environmentalists that they all are, complied with a vengeance. And what was their reward for their self-sacrifice? Higher water rates!

On Monday [third week of November, 2002], Council approved an ordinance to raise water rates to $55.47 per 1,000 cubic feet (or 4,500 gallons), set to take effect on November 18. The rate had been $37.16....

.... As conservation measures kicked in during late summer and early fall, water consumption has dropped by about 40 percent since August. That means that with less water being sold, officials must charge more to keep up the revenue stream.

“It’s the ultimate Catch-22,” said City Manager Gary O’Connell. “The more water we conserve, the more it costs.”

The dwindling stream of revenue, in short, was as, or more, important than the dwindling stream of water.

I was reminded of Charlottesville’s liberal conservationists (the City Council at that time was made up of all liberal Democrats, except for one lone Republican subsequently replaced [actual debates being too troublesome to endure] with another liberal Democrat) by this excellent Debra Saunders column today in the San Francisco Chronicle. Her lede:

For lo these many years, the Democratic motorcade class has scolded American workers for driving gas-guzzling cars. Now that Americans have begun driving more fuel-efficient cars and driving less, how have the finger-waggers reacted? No, they are not planning a parade - they already are working on a new tax on miles driven to make up for lost gasoline-tax revenue.

With the help of a six-year, $2.1 million federal grant, Oregon Gov. Ted Kulongoski is moving forward with a proposal to tax Oregon drivers for the miles they drive. “As Oregonians drive less and demand more fuel-efficient vehicles, it is increasingly important that the state find a new way, other than the gas tax, to finance our transportation system,” Kulongoski told the Albany Democrat Herald.

“If the goal of the green brain trust is to reduce gas consumption,” Saunders continues, “then Oregon shouldn’t dump a tax that punishes guzzling and replace it with a tax that dings Hummers and hybrids alike.” And, one might add, that punishes rural drivers who have to drive longer distances to work and Walmart.

It’s hard to avoid the suspicion — and Ms. Saunders certainly doesn’t avoid it — that one of the attractions of the mileage tax is that it opens the door to all sorts of future attempts to reward and punish various kind of driver behavior:

... the transponders are supposed to track out-of-state driving. And down here [San Francisco], where I get a regular bill with the dates and times for when I paid to cross the Bay Bridge, it’s hard to imagine that after built-in transponders are standard in every new auto, nanny state governments won’t come up with a menu of behaviors beyond driving too much — as in, driving in cities, driving during rush hour — to enable states to levy extra taxes.

Follow the money and the red flag. The road-tax report gushes about how mileage transponders can be used to implement “congestion pricing” — by adding fees for driving in urban areas or during rush hour. Think the London program that charges motorists $15 per day to drive in the central city. Our Betters in Europe like it — so of course, Davos-happy solons from American cities (San Francisco, New York) want their subjects to support this pricey trend.

Dr. MacKinnon, my small home town’s esteemed community sage (who was a dentist in his day job) was fond of saying, of people as well as cars, “it’s not how old you are; it’s how many miles you’ve been.” According to the new “green brain trust” now ascendant in liberal bureaucracies, that, and not how much gas you use getting there, will also determine the amount of taxes you pay.

Posted by John Rosenberg at 11:08 AM | Permalink | Say What? (2) | TrackBacks (0)

Today’s Washington Post has an article by reporter Carol Leonnig, “Obama's Team Rankles the Right: To Some Conservatives, Advisers Are Alarmingly Liberal,” that gives prominent and unchallenged voice to arguments that should rankle anyone who believes the news pages of the mainstream media have an obligation to be at least somewhat fair and balanced in their presentation of political disagreements.

The article describes the concerns of some conservatives about the heavy presence of left wing views on the Obama transition teams for some departments. “Conservatives,” Leonnig writes, “fear that some of these Obama transition advisers are too far left on the political spectrum and are a sign of radical policies to come.”

Typical of these concerns were those voiced by Roger Clegg, president of the Center for Equal Opportunity and a leading critic of race preferences, referring in part to the prominent transition role being played by Bill Lann Lee, a Clinton civil rights appointee who was vigorously opposed by conservatives.

“It is disturbing,” said Roger Clegg, a conservative opponent of Lee’s appointment who is now watching the Obama advisers at the Justice Department. “The transition team as described to me was made up of nothing but people on the far left. Though Obama is more moderate, that makes you wonder what kind of advice the president is given, and what range of choices he’ll be given when it comes time to make appointments.”
....
Clegg said he has some fears about a return to racial quotas, in part because Lee and Theodore M. Shaw, president of the NAACP Legal Defense Fund, serve on the Obama transition team reviewing civil rights.

Also typical is the way the article prominently highlighted responses to Clegg’s criticism, and others like it, blending together unnamed experts, the Washington Post’s own favored expert, and partisan liberal replies:

But some government experts argue that in this particular transition, a wider-than-usual ideological gap separates the outgoing Bush administration and the incoming Obama team and that both sides are likely to view the other as extreme.

“The incoming Bush people were all about stopping regulation. The Obama people will do their best to accelerate regulation that they think protects the environment, workers, airline safety, et cetera,” said Paul Light, a New York University professor of government who has served as a consultant on the transition to The Washington Post. “That’s not barbarians at the gate. It’s a difference of philosophy.”

.... Lani Guinier, a Harvard law professor who was blocked for the same job before Lee’s nomination, said she thinks the complaints of an ultra-left takeover by Obama advisers and nominees are manufactured hyperbole.

“The Bush administration people were often fighting against the very mission of the agencies they were supposed to be running,” she said. “And their advocates were masters at name-calling and finger-pointing. No one involved in this work really thinks Bill Lee is on the radical fringe.”

The overall effect is to mischaracterize, belittle, and reject an argument that Clegg (and others) never made. The Washington Post’s “consultant on the transition” notwithstanding, Clegg never even implied that Bill Lann Lee and Theodore Shaw are “barbarians at the gate,” nor did he describe them, Lani Guinier to the contrary notwithstanding, as the “radical fringe.” Indeed, if they were the “radical fringe” they could be marginalized. The problem is not that they are the “radical fringe” but typical liberal Democrats. In short, all Clegg is doing is pointing out what the Washington Post's consultant implies that he doesn’t understand: that the incoming Democrats do indeed represent a “difference of philosophy,” i.e., a commitment to expanding rather than eliminating racial preferences.

Clegg does not engage in “hyperbole” or “finger-pointing.” He makes a calm argument that if Obama follows the guidance he will no doubt be getting from his civil rights transition team we will see an expansion of race preference policies. Now, everyone knows that Republicans are evil (they oppose race preferences) and/or stupid, but even if he is a stupid Republican Clegg has been debating Theodore Shaw and Bill Lann Lee long enough to have a pretty good idea what they believe.

And how do Guinier et. al. respond to Clegg’s argument? Do they argue that he is mistaken to point out the transition team’s longstanding devotion to race preferences? Of course not. They simply sputter with the very “name-calling” and “finger-pointing” and “manufactured hyperbole” they profess to object to in conservatives. And the Post itself, through its reporter, never deigns to notice the asymmetrical nature of the arguments it reports (argument on one side; disdainful, ad-hominem, hyperbolic dismissal on the other).

Posted by John Rosenberg at 11:44 PM | Permalink | Say What? (0) | TrackBacks (0)

It’s almost as much fun watching the law professors disagree over whether the Senate has the right to refuse to seat Roland Burris (it does; it doesn’t; etc.) as it is watching Senate Democrats try to balance appearing to oppose corruption with not appearing to exclude a black appointee.

Ann Althouse, another law prof, nicely points to the Democrats’ dilemma:

So at at time when there isn't a single black person in the U.S. Senate, a black man arrives at the doorway and means to go forward to take what he believes is his rightful seat...

after which she presents a picture of George Wallace standing in the schoolhouse door over her caption: “Great Imagery, Democrats!”

Actually, Prof. Althouse’s chiding reference to the Democrats’ image problem suggests a legal argument supporting Burris’s right to claim the seat to which he was appointed that I’m surprised no one has yet offered in his behalf. So, with the perception and in the pioneering spirit readers have long come to expect from DISCRIMINATIONS, let me be the first:

The Senate may legally refuse to seat any prospective Senator if a majority of Senators deem the process of his or her election or selection to be too smelly ... unless the prospective Senator is black, in which case excluding him or her might open the Senate to charges of racism.

You may think I jest, but I do not. This argument is perfectly consistent with the argument Democrats make day in and day out defending racial double standards in other arenas, and it is also perfectly consistent with the legal standard suggested by the eminent Harvard law prof Laurence Tribe in defense of the Senate’s right to exclude Burris:

... the fact that the governor has yet to be convicted or even impeached is hardly conclusive when dealing with a Senate decision that a particular election or appointment process has been too tainted by evidence of corruption for any victor in that process to represent the electorate with honor and, equally vital, with the appearance of honor.

It matters not that the criminal standard of proof beyond a reasonable doubt has not yet been met and might never be: The question for the Senate isn't whether the Illinois governor truly is a crook, but whether reasonable observers would deem the process too crooked to produce a credible result.

The task of deciding whether public trust would be unacceptably compromised by seating any appointee of a governor whose overheard comments had poisoned the public well should not be confused with the task of deciding whether someone is guilty of election fraud or of corruptly conspiring to sell a public office for personal gain. [Emphasis added]

The Tribe standard is all about public perception, and if excluding a black man would make the Senate look bad, would lead “reasonable observers” like Prof. Althouse to compare the Senate to George Wallace standing in the schoolhouse door, would “unacceptably compromise” the Senate’s reputation with many voters, then what Senator would claim the right to do that?

Posted by John Rosenberg at 10:37 PM | Permalink | Say What? (2) | TrackBacks (0)

I am always impressed by the writings of Peter Berkowitz (see here, here, here, and here for examples), and his OpEd piece today in the Wall Street Journal is no exception.

He urges both libertarian and social conservatives to embrace moderation, to recognize that they need each other, and argues that a “constitutional conservatism” provides a principled common ground. He provides a list of those principled, constitutionally conservative positions that, although occasionally vague (“Measures to combat illegal immigration that are emphatically pro-border security and pro-immigrant”), I find generally sound, with one glaring exception.

That exception — the dog that did not bark, producing a deafening silence — is a principle that does not appear on Berkowitz’s list: the principle that all Americans have a right to be treated by their federal and state governments without regard to their race, creed, or color.

If conservatives do not insist on this principle, how can we expect anyone else to honor it?

Posted by John Rosenberg at 10:32 AM | Permalink | Say What? (1) | TrackBacks (0)

I’ve just been reading (HatTip to Andy McCarthy) an outstanding article on the laws of war (or lack thereof) by David Rivkin and Lee Casey.

I highly recommend the whole (long) article, but, sucker for ironies, contradictions, hypocrisies that I am, I was especially struck by Rivkin’s and Casey’s discussion of one of the reasons the United States has steadfastly refused to sign on to the Protocol I Amendments (1977) to the Geneva Convention (1949). Those amendments, they write, were directed at two goals, the first of which concerns me here:

to revise the long-standing rule that only states can create and utilize military establishments that are legally “privileged” to use force, and the related requirement that all legitimate militaries must organize and operate like “regular” armed forces in order to maintain their “privileged” status.

Before Protocol I, combatants were required to meet four criteria:

(1) be subject to a responsible chain of command; (2) wear uniforms; (3) carry their arms openly; and (4) conduct their operations in accordance with the laws and customs of war. Groups that did not meet these requirements were considered unprivileged, and their individual members could be severely punished for nothing more than engaging in hostilities. As noted in the British Manual of Military Law, applicable during the world wars:

If persons take up arms and commit hostilities without having satisfied these conditions, they are from the enemy's standpoint guilty of illegitimate acts, and, when captured, are liable to punishment as war criminals.

“By contrast,” Rivkin and Casey write,

Protocol I, at least arguably, eliminates the requirement of government sanction for lawful combatant status, and the rules requiring uniforms and the open carriage of arms are relaxed. In this regard, under Protocol I, irregular forces need to produce their arms and identifying badges only immediately before launching an attack, and can only be targeted themselves while preparing for an attack or attacking. At all other times, Protocol I requires irregulars to be treated as civilians, who can be arrested, but not targeted. Obviously, these changes bestow a dramatic advantage on the hit-and-run tactics favored by guerrillas, and seriously handicap regular armed forces.

That, in large part, is why the United States has refused to sign, a small detail that has not prevented its critics here and abroad from accusing it of war crimes for not following its strictures.

Rivkin and Casey argue, persuasively I believe, that the United States’s refusal to sign Protocol I

does not reflect either a shortage of compassion by the United States or some formalistic American veneration of the old pedantic legal paradigm. Rather, this approach constitutes one of the first major humanitarian advances in the modern laws of war and is therefore, well worth upholding. It was, in fact, the centralization of the right to make war in the state, rather than in powerful aristocrats or self-sustaining condottieri bands, that brought civil peace and order to Europe, marking the transition from a medieval to a modern world. This centralization also fostered the conditions for the establishment of regular, disciplined armies capable of respecting the laws of war, and inclined to do so. At the most fundamental level, the state sanction requirement reflects the distinction — between force used for public ends and violence used for private purposes — that constitutes the moral core of the traditional laws of war. The many governments and NGOs that claim to be committed to the development of “humanitarian” jus in bello norms have in truth accepted the elimination of these critical distinctions between privileged and unprivileged combatants, even though maintaining the difference between public and private uses of violence is essential if war is to retain its moral context....

So, you may be wondering about now, where is the irony or contradiction or hypocrisy that I find lurking in (or suggested by) this discussion? It is here:

Many (though not all) of the severest critics of the right of individual Americans to own and bear arms, especially the right to carry concealed weapons, are enthusiastic supporters of Protocol I who believe the United States should have signed it and is guilty of war crimes for violating it even though it did not sign. Thus they believe that in the United States the state itself should have a monopoly on weapons ownership, that the Second Amendment protects a state’s national guard, not an individual right. American citizens, in this view, have no right to own a weapon in their own homes for self defense, even though they cheerfully recognize the legitimate authority of the state and submit willingly to its laws.

By contrast, by supporting Protocol I they also believe that states do not have a monopoly on the legitimate use of military force, that individuals who recognize no national or international authority have a right to be recognized as a legitimate combatants even though they wear no uniform, are subject to no state laws or control, and carry concealed weapons used to target civilians.

Go figure.

Posted by John Rosenberg at 10:22 AM | Permalink | Say What? (0) | TrackBacks (0)