Discriminations

Judge Sonia Sotomayor’s nomination to the Supreme Court, and especially her provocative assertion (which she misleadingly labels a “hope”) that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” continues to excite commentators — Right, Left, and Center. Fortunately for those of us who comment on commentators, much of this commentary invites criticism.

Take, for example, from the Right, the almost always reliable James Taranto, who writes the Wall Street Journal’s indispensable Best of the Web column. Yesterday he had a terrific discussion of “What Sonia Sotomayor and Archie Bunker have in common.” Read the whole thing, since my criticism is of only the following one small piece of it. Comparing Sotomayor’s “wise Latina” statement above to a definition of racism, Taranto concludes that the statement was prejudiced, but not racist:

Sotomayor’s statement is not racist, even assuming that “Latina” is a racial category. She is quite clear that her belief in the superior decision-making skills of “a wise Latina woman” as compared with “a white male” is contingent on culture and experience, not rooted in some essential racial difference.

I think Taranto would, or at least should, have been more hesitant in concluding that Sotomayor does not believe “in some essential racial difference” if he had paused to consider the implications of the first sentence of the paragraph in Sotomayor’s speech whose last, “wise Latina” comment has received all the attention. Note well what she says there:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

Sotomayor here explicitly says that she’s not sure whether race, gender, and ethnic differences derive from experience, culture, or “inherent physiological or cultural” differences, and moreover that she’s not bothered by the possibility that the differences may be inherent. As I noted here,

Perhaps some future interrogator can ask Judge Sotomayor to explain what she means by “inherent physiological or cultural differences,” and why she’s not bothered by these racialist notions. In any event, if a cultural difference were somehow “inherent,” wouldn’t that make it physiological and not cultural at all?

Moving on, today’s commentators from the Center (Stuart Taylor) and Left (Richard Thompson Ford) both concentrate on Sotomayor’s role in preserving a robust and continuing influence for the “disparate impact” theory of discrimination. Ford, from the Left, is a big fan of disparate impact and so applauds Sotomayor’s role in defending it in Ricci. Taylor, from the Center, is, predictably, on-the-one-hand, on-the-other-hand conflicted. (I have developed my own unconflictedly critical view of disparate impact in a number of posts, and I’m not going to repeat those arguments now. If you’re interested, look here, here, here, here (be sure to read the comments on this post), here, here, here, and, presciently if I do say so myself, here.)

Ford defends the disparate impact rule as necessary to prohibit “inadvertent” discrimination and to “smoke[] out hidden bigotry.” If “hidden bigotry” is the problem, of course, then the unjustified disparate impact of an employment policy is simply evidence of what is actually a discriminatory intent, not “inadvertent” discrimination.

Ford also displays a troubling penchant for asserting as fact something that is highly controverted and for describing the issues raised by disparate impact as thought sweet reason were all on one side. He asserts, for example, that

New Haven’s decision [not to promote anyone because no blacks passed the promotion exam with high enough scores] may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII.

Both of these assertions — New Haven’s actual motive and whether the test violated Title VII — are matters of highly controversial opinion, not facts. Ford neglects to mention, for example, that the professional testing company that prepared New Haven’s test offered to validate the test, but New Haven refused the offer. Nor did he mention, by the way, that the the three judge panel of the Second Circuit court that ruled in favor of New Haven in a terse, summary fashion, the panel on which Judge Sotomayor sat, also stated that one of the reasons the city set aside the results of its promotion test is that promoting only those who had passed with sufficiently high scores, the 17 whites and one Hispanic, “would subject the city to public criticism.” Does Title VII authorize public entities to engage in racial discrimination in order to avoid public criticism?

Ford argues that “[p]rohibiting tests that needlessly screen out underrepresented groups” is sensible, that without the disparate impact rule an employer could use a hiring test “that screens out a particular group for no good reason,” and that it gives employers ample opportunity

to prove that the discriminatory criteria are job-related. The idea, then, isn’t to make an employer hire less qualified women or minorities over more qualified men or whites. It’s to make sure the employer is testing for job qualifications, not unrelated ones.

Again, I think Ford is guilty of slanted misstatement. Who determines (and by what criteria) that a test “needlessly” excludes some people, that there is “no good reason” for it? Critics of disparate impact do not claim that it is legitimate to exclude a racial, gender, or ethnic group “needlessly” or for “no good reason” by using selection criteria that are “unrelated” to the job. The issue, instead, is how closely the selection criteria have to be to the job, what level of proof is required, and who has the burden of proof. Consider Ford’s examples:

Suppose an employer wants to keep women out. Knowing that he can’t just put a “women need not apply” sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias. Now, suppose an employer has no desire to discriminate against women but uses a weightlifting test simply because he thinks, all other things equal, stronger employees are better than weaker ones. Disparate impact law also prohibits this: It requires the employer to reconsider job qualifications that favor one race or sex, unjustifiably.

First, hidden bias is still bias, and so fails the intent test. In the real world, there aren’t many examples of employers who devise requirements like a weightlifting test out of some abstract, un-job related affection for weightlifting. Almost all the time an employer will argue that the requirement in question is job related, to which those who love disparate impact will invariably reply with some combination of a) no, it isn’t; or b) a claim that the employer must prove not only that the requirement is “job-related” (here is where Ford misstates the issue most clearly) but that it is absolutely essential to the job, that it is a “business necessity.”

In Griggs v. Duke Power Company (1971), the mother of all disparate impact claims, the Court held that Duke Power was not justified in requiring a high school diploma or its equivalent for all new employees because of the disparate impact of that requirement on minorities and its absence of proof that such a requirement adequately predicted job performance for all employees. But how could Duke, or any employer, prove that earning a high school diploma was good evidence of drive, determination, organizational skills, self-discipline, etc. that it valued in employees? Desire to find evidence of those traits in would-be employees is neither “hidden bigotry” nor an abstract fondness for weightlifting.

Finally, consider the following comments from Ford:

New Haven claims that the test it tossed out had a disparate impact. Eight black, 25 white, and eight Hispanic firefighters took New Haven's test for promotion to captain; three black, 16 white, and three Hispanic candidates passed. Nineteen black, 43 white, and 15 Hispanic firefighters took the test to become lieutenant; six black, 25 white, and three Hispanic candidates passed. This result counts as discriminatory under the rules of the Equal Employment Opportunity Commission. New Haven was right to worry about the possibility of a lawsuit from black firefighters if it accepted the results of the tests.

The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam—no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test. More reason for the city to worry about a lawsuit by the African-Americans who were to be passed over.

Now consider the following from Steve Sailer:

.... On the Graduate Record Exam-Verbal, black college graduates on average score only three-eighths as well as whites (i.e., at what would be the 18th percentile for whites). And that’s their best showing. On the Medical College Admission Test, blacks only reach the one-fifth level.

And yet you aren’t supposed to mention these facts in polite society. As a result, almost nobody thinks about them in a systematic fashion. That’s why the liberal Justices can get away with acting as if the Ricci results, in which blacks scored at the three-eighths level on the Lieutenant’s test (exactly like the GRE-V) and the one-fifth level on the Captain’s test (exactly like the MCAT) are some anomalous mystery which a “better test” could somehow make disappear.

Does Richard Thompson Ford believe the SAT, the Graduate Record Exam, the Medical College Achievement Test, the Law School Aptitude Test all fail the disparate impact test and should be outlawed? If not, why not?

Now, from the Center, comes Stuart Taylor (last encountered on this issue here). Here’s how he sets up the conflict that leaves him, well, conflicted:

Underlying Judge Sonia Sotomayor’s most controversial decision -- her vote last year against 18 white firefighters (including one Hispanic) who were denied promotions on account of their race — is a painful conflict between two civil-rights principles that were once seen as complementary.

The first principle is the anti-discrimination ideal embodied by the original 1964 Civil Rights Act and by Dr. Martin Luther King Jr.’s dream of a nation where people “will not be judged by the color of their skin but by the content of their character.” That ideal rejects intentional discrimination against — or preferences for — individuals based on race, creed, color, national origin, or sex, and calls instead for allocating opportunities based on individual ability and effort.

The second principle redefines “discrimination” to include the use by employers of any merit-based tests or other objective criteria for hiring or promotion that have a “disparate impact” on different ethnic groups — as almost all objective tests have.

This, in my opinion, is a false dichotomy. The “anti-discrimination ideal,” i.e., that everyone should be treated “without regard” to race, religion, ethnicity, is indeed a civil rights principle. Indeed, I would argue, it is the civil rights principle. Disparate impact, by contrast, is not a civil rights principle at all. It is, at best, a way of treating certain kinds of evidence, often statistical, as precisely that, evidence (not proof) of discrimination. At worst, which is what it always becomes in the hands of its most ardent defenders, it is a blatant redefinition of discrimination. Under its rough hands, discrimination ceases to be differential treatment of people based on their race, gender, or ethnicity. Instead, the statistically different result alone become both the essence and the proof of discrimination.

Despite what I regard as the flaw of equating disparate impact, which is as I’ve said at best a method of proving discrimination, with a “civil rights prinicple,” the remainder of Taylor’s article is quite impressive. And, contra Ford, he concludes that “the evidence in the New Haven case strongly suggests that racial politics was the city’s main reason for snatching away the white firefighters’ expected promotions, amid intense political pressure to give blacks a share.”

Taylor also usefully reminds us that Sotomayor is not the only Democratic, Hispanic Judge on the Second Circuit.

The other Clinton-appointed Hispanic judge, Jose Cabranes, was so disturbed when he learned of the panel’s curiously “perfunctory disposition” that he sought to have it reconsidered by the full 2nd Circuit. He lost by a 7-6 vote. In a dissent for the six, Cabranes suggested that the case might involve “an unconstitutional racial quota or set-aside.” He added:

“At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”

“Back in 1971,” Taylor believes, “when the Supreme Court first grafted disparate-impact rules onto the 1964 Civil Rights Act, they seemed to complement the anti-discrimination ideal.” But those rules didn’t seem that way to everyone then, nor should they have. Just like busing to achieve racial balance, the simply-count-the-black-faces approach to civil rights always undermined rather than complemented the non-discrimination principle at both the heart and head of civil rights.

Taylor appreciates the fact that “[t]he disparate-impact dynamic has the benefit of expanding opportunities for preferred minorities,” but he also notes that

it also has great costs. It is unjust to high-scoring white and Asian workers; it has greatly eroded the anti-discrimination principle; and it downgrades incentives for students and workers to study and learn — both in school and in rigorous test-preparation courses such as the one that helped some New Haven firefighters improve their skills and do well on the test.

That is a most unhealthy message to be sending to blue-collar families at a time when America's competitiveness is being crippled by the inferior educations of many of our high school graduates compared with those in other developed countries....

In any event, such reverse racial discrimination will persist — and perhaps become ever more pervasive — for as long as employers fear disparate-impact liability more than they fear liability for intentional discrimination against whites and Asians.

The only problem here is with Taylor’s use of the term “reverse discrimination.” As I’ve argued here many times, there is no such thing as “reverse” discrimination. Discrimination based on race is ... discrimination based on race. Nothing “reverse” about it.

Finally, at least for my purposes, Taylor notes that

[p]rofessed fear of disparate-impact lawsuits can also provide excuses for government employers that want to discriminate against white workers. Why would they want to do that? The main reason is identity politics — for which, I argued in my May 23 column [which I discussed here], Sotomayor seemed to exude some sympathy in a 2001 speech.

Indeed, this suggests a question for those like Richard Thompson Ford, who defends disparate impact in part because it can root out “hidden bias” and disguised discriminatory intent. On Ford’s theory, why shouldn’t the white (and one Hispanic) New Haven firemen have a strong disparate impact claim against New Haven for discarding test results on which only whites and and a few Hispanics did well?

ADDENDUM: Criticism Of Another Righty

I saw The Problem of Affirmative Action by the always impressive Megan McArdle too late to incorporate above, but I can’t let it go uncommented. McArdle is a moderate Libertarian who often agrees with conservatives. She writes:

HL Mencken once defined Fundamentalism as “the terrible, pervasive fear that someone, somewhere, is having fun”. I’ve been thinking of this a lot watching some of the attacks on Sotomayor, but I’d frame the critics as suffering from the terrible, pervasive fear that some brown person, somewhere, is getting away with something.

Posit that everything the critics say about Sotomayor is true; that indeed, everything they say about affirmative action is true. Is this the biggest problem facing America?  Is this the biggest problem facing America from Sonia Sotomayor?

Given my politics, I am probably not going to like how she rules on many, maybe even most, issues. But almost none of those issues involve racial preferences, which, even if they are a problem, are a small problem for America, affecting fewer people than almost any of the other major policy questions we’re debating today. Making race, or racial politics, the central complaint, makes it seem like your biggest policy priority is making sure that not one minority in the land gets anything they don’t deserve. But hey, we all get things we don’t deserve. I’ll go further: almost all of us get something we don’t deserve as a result of our race, including white people. Perhaps even especially white people.

First, Mencken was referring to Puritans, not Fundamentalists (and no, they are not the same, by a long shot), but that’s not my main problem with her post.

I think she misunderstands, or at least ignores, the most fundamental criticism of affirmative action we critics make. It is not at all a “pervasive fear that some brown person, somewhere, is getting away with something.” It has nothing to do with some people getting something “they don’t deserve.”

Our criticism is not based on a few (or even many) brown people or black people getting something they don’t deserve at the expense of white people or yellow people who do deserve. Our complaint is that the principle that people should be treated “without regard” to their race or ethnicity is, or was until it was trashed by the preferentialists, a core value, a building block, of our society. Thus our complaint against the old system of racially preferential admissions to the University of California is not some number of black and Hispanic individuals received a prize that rejected Asian individuals deserved (although that was the case). It is that racial preference undermines the non-discrimination principle, a fundamental value of our society, and thereby subordinates the individual rights of all to a racial free for all. Being judged as individuals and not by an inherited ascribed status, finally, has been one of the most important things setting the United States off from other societies.

Let me give a couple of examples by analogy of why I think McArdle is profoundly wrong here. First, to be consistent she would have to argue that those who object, say, to religious preferences — for example, to placing a quota on the number of Jews admitted to colleges or professional schools — object only because they would like to see a few Jews get what they “deserve,” instead of those rewards being given to some already over-privileged Episcopalians who undeservedly benefit from the reduced number of Jews who are admitted.

Another example: universities are organizations, even societies, organized around the pursuit of knowledge. Cheating violates a trust that is essential to such organizations. But McArdle’s objection to those who think racial preference violates a fundamental, essential value of American society is as though she complained that those who make a big deal out of academic cheating do so only because they don’t like to see a few students (especially black and brown students) get better grades than they deserve, at the expense of grade grubbers who over time have often gotten better than they deserve.

McArdle is usually so sensible, although she apparently voted for Obama, but not in this post.

Posted by John Rosenberg at 8:15 PM | Permalink | Say What? (18) | TrackBacks (0)

Yesterday Emily Bazelon, one of SLATE’s liberal legal writers, wrote that Ricci v. Stefano, the case of the New Haven firefighters who were denied promotions because no blacks passed the promotion exam (see here, citing a bunch of earlier posts), “is a hard case with bad facts—a case that could do serious damage to Title VII, one of Congress' landmark civil rights laws.”

Really? If the Supreme Court were to decide that New Haven violated Title VII by refusing to promote firemen who would have been promoted if a) they were black or even if b) a few more blacks had passed the exam, how would that “do serious damage” to Title VII?

Perhaps it would help actually to look at Title VII (Public Law 88–352, as amended, volume 42 of the United States Code, beginning at section 2000e). Here are a few relevant excerpts:

(a) Employer practices

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

....
(j) Preferential treatment not to be granted on account of existing number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor- management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.
....
(l) Prohibition of discriminatory use of test scores

It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. [Emphasis added]

There are no doubt many different ways the Supreme Court could rule in favor of the plaintiff New Haven firemen, but, hypothetically, let’s say that among the reasons given for concluding that the City of New Haven violated the rights of the white and Hispanic firemen who were not promoted were the following:

a) that the City’s refusal to promote them was discrimination based on race, since they would have been promoted if they were black or even if some blacks had passed the test;

b) that the City’s refusal to promote was based on an illegitimate concern “with an imbalance which may exist” among the promotees or with the “total number or percentage of persons of any race” who would have been promoted;

c) that the City impermissibly altered the results of the employment test by not promoting those who passed, as promised; and

d) that even if the City was concerned with factors other than the racial “imbalance” in the number of those who passed its exam, such as fear of a disparate impact lawsuit if it did not ignore the exam results, that nevertheless race was “a motivating factor.” [Emphasis added]

In other words, if the Supremes were to conclude that the City of New Haven violated the clear text of Title VII in some or all of the particular ways listed above, how would that “do serious damage to Title VII”?

Perhaps Emily Bazelon has read Title VII, and is even knowledgeable about it, but there’s scant of either in this article.

Posted by John Rosenberg at 11:35 PM | Permalink | Say What? (2) | TrackBacks (0)

Yesterday I discussed (here) the ACLU’s attempt to prevent Quinnipiac University from eliminating its women’s volleyball team, along with two men’s teams, in an effort to cut costs, the sort of decision one might think possessing some academic freedom protections. In preparing that post I looked at, and wound up linking, a long list of posts in which I had discussed the efforts of a number of elite law schools to block occasional recruiting visits by representatives of the Department of Defense, visits the law schools claimed violated their academic freedom by forcing them to violate their own non-discrimination policies, an argument the Supreme Court unanimously rejected in Rumsfeld v. FAIR.

Reviewing my old posts about this controversy reminded me of what on the surface appears to be a monumental hypocrisy: the claim that allowing an occasional Dept. of Defense recruiter to visit their campuses forced the law schools to violate, or to aid and assist violations, of their non-discrimination policies.

Here, for example, I quoted Yale’s non-discrimination policy —

Yale Law School is committed to a policy against discrimination based upon age, color, handicap or disability, ethnic or national origin, race, religion, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, sexual orientation, or the prejudice of clients. All employers using the school's placement services are required to abide by this policy

— and then I noted:

Whatever can be said in defense of racial preferences, one thing that cannot be said is that employers who give preferences based on race treat all their applicants without regard to race. As I asked here:

if law schools should exclude all recruiters who refuse to treat all their students equally, shouldn’t all those employers who practice racial preference also be excluded?

To be consistent shouldn't Yale, Harvard, et. al. bar recruiters from all employers — such as, for example, virtually all other law schools — who award racial preferences?

The Dean of the Yale Law School at the time, and a leader of the effort to bar Defense Dept. recruiters, was Harold Hongju Koh, whom you will recognize as President Obama’s nominee to be Legal Adviser to the State Department. In commenting on the Supreme Court’s rejection of the attempt of Yale and other leading law schools to bar military recruiters, Dean Koh said that

We look forward to the day when the government gives all of our students — without regard to their sexual orientation — an equal opportunity to serve our country by working in our Nation's armed forces.

The Senate Foreign Relations Committee recently approved Dean Koh’s nomination to be Legal Advisor, but it has not yet been voted on by the Senate. Perhaps it is not too late for some Senator to ask, as I did: Does Yale Favor Equal Opportunity Only For Gays? The question seems highly relevant, since Dean Koh stated clearly that he believes people must be treated “without regard to their sexual orientation” in order to have “equal opportunity,” but Yale’s practice of racial preference, and defense of it everywhere, reveals that he clearly does not believe that distributing official benefits or burdens on the basis of race or ethnicity denies “equal opportunity” to those receiving the burdens.

Posted by John Rosenberg at 10:15 PM | Permalink | Say What? (0) | TrackBacks (0)

If you’ve been wondering what President Obama means by “empathy,” wonder no longer. The Chronicle of Higher Education makes it clear this morning, in “Supreme Court Nominee Was on the Side of Minorities in Key Cases.”

President Obama’s nominee for the U.S. Supreme Court, Sonia Sotomayor, has a relatively thin record on cases involving higher education. But in two decisions that could have implications for higher education, she has sided with members of minority groups—in one case supporting a government hiring policy that would benefit African-Americans, and in the other supporting an individual student who challenged a grading policy as discriminatory.

In a third case, Judge Sotomayor supported an individual’s right to file complaints against a university regardless of the merits of the suit.

For Mr. Obama, Judge Sotomayor’s stances might reflect the kind of empathy that he has said he is seeking in the next justice.

Posted by John Rosenberg at 10:40 AM | Permalink | Say What? (0) | TrackBacks (0)

[NOTE! This post has been UPDATED]

Well, yes, according to the ACLU, which is attempting, so far successfully, to block Quinnipiac from eliminating its women’s volleyball team. The Chronicle of Higher Education reports today:

A federal judge told Quinnipiac University today that it may not eliminate its women’s volleyball team — or cut spending on any women’s team — while the court hears a gender-equity lawsuit over the university’s plans to cut the volleyball team....

The Chronicle did not report, but the Hartford Courant did, that the women’s volleyball team “was eliminated along with men's golf and men's outdoor track March 5 when the school had to make budget cuts.”

[Quinnipiac University counsel Mary] Gambardella said that Title IX is not designed to micromanage a university's budget.

“It’s not intended to compel people to maintain any particular program or cut any particular program,” she said.

You might think that Ms. Gambardella’s argument, invoking academic freedom as it does, would garner support from all those legal academics and others who are often quite outspoken in their opposition to perceived government intrusions into academic freedom. If you did think that, silly you.

Not long ago, for example, whole hosts of them insisted vociferously, and litigiously, that the right of law schools to exclude occasional campus recruiting visits from representatives of the Department of Defense was a precious right protected by academic freedom, a controversy that was extensively chronicled here, here, here, here, here, here, here, here, here, here, here, here, here, and here.

Funny, but none of the worthies quoted in those posts have been heard to speak up for Quinnipiac's academic freedom.

UPDATE [ 27 May]

Inside Higher Ed reports today that Quinnipiac has decided not to eliminate its women’s volleyball team. Instead, it will eliminate its men’s indoor track team.

Posted by John Rosenberg at 5:15 PM | Permalink | Say What? (2) | TrackBacks (0)

I have had, or in any event taken, several opportunities to discuss both the original and modern versions of “waving the bloody shirt,” described here as the popular Republican tactic for more than a generation after the Civil War to remind voters of the Democrats’ sympathies with the South. In addition to that post, see More Waving Of The Bloody Shirt and The Bloody Shirt Still Waves..., and Section 5 As The New Bloody Shirt.

Now it’s being waved again, by a bunch of professors, teachers, and a few fellow travelers. Based on their efforts, ABC News asks, “Will President Obama Send A Wreath to Confederate Memorial in Arlington?”

On Memorial Day, President Barack Obama will participate in an annual presidential tradition — a public wreath-laying ceremony at the Tomb of the Unknown Soldier at Arlington National Cemetery in Virginia.

But the day may be marred by a brewing controversy over whether President Obama will send a wreath to the cemetery's Confederate Memorial, as presidents have done since Woodrow Wilson.

A group of several dozen university professors and scholars have written a letter to the president asking him to not send a wreath or any commemorative token to the Confederate Memorial.

History News Network has the letter these worthies sent to the president. Some of the signers are quite well known — Princeton’s highly regarded Civil War Historian, James McPherson (seen on this site here and here), First Friend Bill Ayers; some aren’t — but all are quite earnest about the evil of a President of the United States (united?) continuing a tradition of honoring the Confederate dead along with the Union dead.

Rather than comment on this new bloody shirt waving directly, I’m going to do so indirectly by quoting in its entirety an old post (very old: from 2002) on a couple of identical issues. I’m reposting rather than simply linking because I want to note which of its links (most of them, alas) are now dead, which I’ve done with strikes. Another reason for reposting is that I think the same thing now that I did then.

September 8, 2002
Freedom of (or from ?) Confederate Flags

Back in April Eugene Volokh posted an interesting discussion (as is his wont) of the First Amendment implications of allowing/banning displays of the Confederate flag. [Old link is dead; post can be found here.]

The occasion for his comments was a Fourth Circuit Court of Appeals decision striking down Virginia's refusal to allow the Sons of Confederate Veterans to design a custom license plate that featured the Confederate flag. [Old link is dead, but Sons of Confederate Veterans v. DMV can be found here.] Eugene pointed out that this was not an easy case, for the government had several good arguments on its side — that when it “spoke” it should have wide latitude in saying, or not saying, whatever it wanted and that agreeing to the Sons’ logo would give it the commonwealth’s stamp of approval. On balance, however, Eugene concluded the court was right since in its operation Virginia’s custom license program was an open forum and thus not allowing the Confederate flag was viewpoint discrimination.

A similar flap occurred in Washington back in 1993. The Senate was all set to renew, as a matter of routine, the “design patent” of the United Daughters of the Confederacy, as it had done a number of times in the past. Senator Carol Mosely-Braun of Ill. (subsequently defeated, alas not over this) objected on all the predictable grounds, and the Senate, embarrassed, backed down and refused to renew. All the issues Eugene mentioned re flags on license plates were present then -- govt speech, govt “endorsement,” awarding an honor, etc., as well as the same selective censorship/First Amendment issues. Although I thought (and think) the arguments on the politically correct side were not frivolous, I also thought (and think) the free speech argument was stronger, except that nobody really made it.

Anyone wishing to pursue this matter can find an official summary here [Haven’t found new link]. Anyone wanting to pursue the matter on a more theoretical, as well as historical, level would be well advised to read the book by my friend Sandy Levinson, a professor of law at the University of Texas. Sandy is a dear friend, but I should warn you that he endorses the trashing of symbols, statues, etc., once what they stood for becomes sufficiently unpopular. He’s a native North Carolinian, but if he had a bulldozer, the skill, and time he’d raze all those “Lest We Forget” monuments that anchor Southern squares.

Why bring all this up now? some of you must be asking. Because Geitner Simmons of emerging Regions of Mind fame has just brought to my attention an article from Greensboro, N.C, about the United Daughters of the Confederacy being compared to the Ku Klux Klan by a middle school principal as he withdrew the school’s participation in the UDC’s annual essay contest. He then was forced to issue an abject apology.

No doubt about it: the Confederate flag is a controversial, divisive symbol, and groups that honor it are not popular. I would not display it in my house if I knew it offended family or guests. But lest we leap to accept this as an acceptable standard for exclusion from public spaces, recall that at Berkeley these days the American flag (for Southerners who remain unreconstructed: the Union flag) is itself unpopular and banned (or so some said) from certain events. See discussion here. It is also worth pondering what standard would dictate exclusion of the UDC from the schools that would not also exclude the Daughters of the American Revolution. Surely not favoring rebellion against established authority, justifying slavery, etc. Oh, so you want to exclude both? Then who would you allow in?

Perhaps we should take some lessons from our own past and re-learn the ones that teach that toleration is not the same as endorsement and that our core values (including “diversity,” properly understood) favor the widest possible boundaries for expression, and participation in public life, that are consistent with public safety.

As it turns out, I have written about similar issues — flying the Confederate flag; Vanderbilt, in the name of “diversity,” attempting to sandblast the word “Confederate” off its Confederate Memorial Hall, paid for in part by donations from the United Daughters of the Confederacy; etc. — several times. Don’t worry; I’m not going to repost all of them here. But if you’re interested, as you should be, go here, here, and here.

It will be interesting to see whether our first post-partisan president rejects the sectional reconciliation symbolized by the tradition of joint wreath-laying. If he does reject it, in order to be consistent he should take immediate steps to ensure that no “stimulus” funds are used to repair roads with politically incorrect names (Arlington County’s Lee-Jackson Highway comes to mind, and the highway with the same name connecting Jacksonville to St. Petersburg), no fixing up of town squares containing Confederate monuments; no funds to any school named after Lee, Jackson, Stuart, Jefferson Davis, etc.

UPDATE [Memorial Day]

President Obama did send a wreath.

Despite an appeal for him to end a presidential tradition dating back to Woodrow Wilson, President Barack Obama sent a Memorial Day wreath to the Confederate Monument at Arlington Cemetery. But he also sent a wreath to a monument honoring African-American soldiers who fought in the Civil War.

Posted by John Rosenberg at 5:46 PM | Permalink | Say What? (1) | TrackBacks (0)

Stuart Taylor Skewers Sotomayor’s Identity Politics ... Sort Of has been UPDATED three times.

Posted by John Rosenberg at 11:20 AM | Permalink | Say What? (0) | TrackBacks (0)

In his Washington Post column this morning George Will writes:

For several decades, most of the ingenuity that liberal academics have invested in First Amendment analysis has aimed to justify limiting the core activity that the amendment was written to protect — political speech. These analyses treat free speech as not an inherent good but as a merely instrumental good, something justified by serving other ends — therefore something to be balanced against, and abridged to advance, other goods.

“So,” Will continues, “political speech is not a right but a privilege, something granted by government when government deems it consistent” with other needs and goals. Read the whole column.

Will may be right that “most of the ingenuity that liberal academics have invested in First Amendment analysis has aimed to justify” the government’s desire to regulate and restrict political speech, but not all of it. Some of that liberal ingenuity has also been invested in devising ways to allow governments to limit non-political speech, such as “hate speech” and pornography.

And, of course, it’s true that not all the ingenuity of liberal academics has been devoted to developing innovative arguments to limit speech. A great deal of it, perhaps more, has been devoted to equally innovative arguments justifying the government’s ability to distribute benefits and burdens based on race, i.e., defending “diversity,” denigrating colorblind neutrality.

For almost the entirety of its history in this country liberalism has stood proudly and firmly in favor of free speech and colorblind racial equality. This generation of liberals, however, has discarded both of those principles and now spends most of its academic time inventing new ways of trashing them.

What a mess of liberalism they’ve made.

Posted by John Rosenberg at 11:18 AM | Permalink | Say What? (1) | TrackBacks (0)

[NOTE! May 24. This post has now been UPDATED three times. Since these UPDATES have become the tail that wags the bedraggled dog of this post, I think you should read them.]

How could I not like Stuart Taylor’s masterful dissection of Judge Sonia Sotomayor’s identity politics in his current National Journal column? After all, much of it echoes what I argued here and here, only better.

“So accustomed have we become to identity politics,” Taylor writes,

that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.
Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: “I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life” -- and had proceeded to speak of “inherent physiological or cultural differences.”

Taylor’s most effective demolition of Judge Sotomayor’s fixation on her own identity, however, is not what he says; it is his extensive, unfiltered quotation of what she has said. Overall, an impressive performance (Taylor’s, not Sotomayor’s).

So, what’s not to like? Well, as it happens, something. Taylor, smart and sensible as he is, hasn’t altogether recovered from being a liberal (albeit a moderate one). Consider, to see what I mean, how he responds to a point I made in my last Sotomayor post. After quoting her outrageous hope “that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life,” I then added the following:

Although Judge Sotomayor’s comment is indeed extreme, and deserving of more attention than it has received [which Taylor’s current column does much to remedy], doesn’t it in essence simply state what all the “diversity” arguments logically imply? Most diversiphiles may not assert — indeed, may not even believe — that a wise Latina woman/black/whatever will more often than not reach a better conclusion than a white male, but must not all diversiphiles believe that a court with such a person or persons will most of the time reach better conclusions than a court without? If that weren’t true, after all,what would be the point of “diversity,” aside from “racial balance for its own sake”?

How does Taylor respond? Well, first, he is as outraged as any reasonable person should be at her offensive assumption (it doesn’t seem to be merely a “hope”) that her Latina-ness equips her to be a better judge than others, especially males, who lack her ethnic and gender identity. But then he gives the obligatory nod to “diversity,” adding that he share’s

Sotomayor’s view that presidents should seek more ethnic and gender diversity on the bench, so that members of historically excluded groups can see people like themselves in important positions and because collegial bodies tend to act more wisely when informed by a diversity of experiences.

One flaw, among many, of supporting ethnic and gender identity “so that members of historically excluded groups can see people like themselves in important positions” (aside from the question of whether courts should be representative bodies) is that, as that notion is interpreted and applied today, only some groups seem to deserve to “see people like themselves” in those positions. If there is concern that, say, born again Christians are “underrepresented” on the bench, I’ve somehow missed it. The notion also assumes, incorrectly I believe, that all members of even the favored groups are “like” one another, as though racial and ethnic identity give everyone the same “experiences.” If that were the case, there would have been more joy among blacks at Clarence Thomas’s appointment and among Hispanics at the failed nomination of Miguel Estrada to the Court of Appeals for the District of Columbia.

Taylor, in short, has no use for Sotomayor’s claim that wise Latinas will reach better judicial conclusions than white males, but he nevertheless believes that a court with a wise Latina would reach better results than one with only males, no Latinas or Latinos, etc. His justification for this faith (I don’t know that there is evidence for it) is that “collegial bodies tend to act more wisely when informed by a diversity of experiences.”

Now on one level this may well be true, but the level is so high, so abstract, so removed from the actual “experiences” of courts that it becomes a banality, a sentiment more than an analysis. That sentiment, appealing as it may be, has no real bite (or should have no real bite) in the actual controversies over “diversity” today. That is the case because, among other reasons, it assumes what it asserts: first, that simply being Latina or black or female or whatever is enough to guarantee relevant “diversity of experience[],” and second, even if that were true, that the “diversity of experience[]” provided by racial, ethnic, or gender identity is more important than the virtually endless plethora of possible “experiences” that no one cares about and no one demands as pre-requisites for judicial appointments. Military experience? Growing up in a very large/very small family, perhaps with a single parent? Handicap? Experience working on a farm? Experience as a consumer, i.e., on the receiving end, of the criminal justice system? Athletic success/failure? Poverty? Manual labor? Experience as a K-12 teacher or junior college student? The possibilities of relevant “diversity of experience[]” are almost endless.

The problem, in short, with Taylor’s endorsement of “ethnic and gender diversity” is not that diversity is bad but that, on the level where it is true, it is a banality. And where it is not true is the very place where its rubber actually meets the road of contemporary controversy — in effect equating identity and its accompanying experience with race and ethnicity, and thus leading to and reinforcing our current regime of ossified racial preference. There, it suffers all the inanity and offensiveness of Sotomayor’s identity über alles assertions so well skewered by Taylor in his more sensible, and fortunately more typical, analysis.

UPDATE [23 May]

A very thoughtful liberal friend (yes, there are thoughtful liberals!), who prefers to remain anonymous, has emailed a response to my one-sided dialog here with Stuart Taylor. Since his argument is quite good I’d like to share it with you, along with my thoughts about it.

I submit that, to pick an extreme example, it would seem exceedingly odd to most (I suspect) people if the Supreme Court had still never had a single woman or black justice, at a time when half of law students are women and a substantial percentage of state Supreme Court justices are too, and when there are substantial numbers of well-qualified blacks available, etc.

Now, in that event one might say that the best-qualified candidates in the eyes of the presidents who have appointed all recent justices just happened to be white males. Every one of them. But most people, I think, would see this as a rationalization for continuing an old-boy-network approach to things and freezing out groups that had, of course, long been frozen out by raw discrimination. And the appearance created would be much more destructive to the body politic and national unity, in my view, that a slight compromise on qualifications for the sake of pushing a few members of traditonally discriminated-against groups forward.

If you are prepared to say that an all-white-male Court throughout American history down to 2009 would be fine, unless there were evidence of deliberate discrimination, then I respectfully disagree.

If, on the other hand, you acknowledge that there would be a problem with my hypothetical, then the question becomes: OK, so we want SOME gender or ethnic diversity for its own sake; how much do we want? And such calculations devolve into a standard cost-benefit analysis. I would make a slight compromise on the qualities I might prefer in a justice to get a Hispanic woman; I would not make a big compromise.

Of course, a nine-member Court can only have so much ethnic diversity, or other forms of diversity, including the professional diversity that is so lacking on a Court made up entirely of former appellate judges most of whom went to Yale or Harvard. So people such as me, who want a light finger on the scales for the sake of diversity, have to pick our shots. One reason for the focus on Hispanics instead of (say) born-again Christians is that I am not aware that born-again Christians as a group have been complaining that none of them are on the Court; maybe those whose passion is abortion, for example, feel that the five Catholics now on the Court are sufficient to cover the religious point of view.

As I said, this is a strong argument. Let me begin responding by stating (more for the record — there is a record, isn’t there? — than as part of this debate) that I don’t believe possible nominees to judicial positions have a right to be treated without regard to their race (or ethnicity, etc.). Since these are discretionary, political appointments, it can hardly be argued that all political considerations are out of bounds. Thus I don’t believe disappointed non-nominees have available to them the same strong arguments that can be made by college applicants or, say, firemen in New Haven who are denied admission or promotion because of their race. That doesn’t mean, however, as I will argue in a moment, that it is wise or good for presidents to place heavy thumbs on the racial scales. Far from it.

Next, let me emphasize an important point that my friendly correspondent did not argue. Taylor, recall (see above, if you don’t), gave two justifications for “diversity” on the Court:

1) “so that members of historically excluded groups can see people like themselves in important positions,” and

2) “because collegial bodies tend to act more wisely when informed by a diversity of experiences.”

My correspondent, however, ignores No. 2 altogether, and bases his whole argument on No. 1. I don’t mean to say that he thus concedes that No. 2 is too thin a justification, that the number of cases or controversies that reach the Court where a Justice’s Latina identity might actually add something of value to the deliberations is quite small, and that even in those rare cases (assuming one or two exist) what is really valuable is not the unique experience she brings to the bench but that her mere presence makes the result appear fairer than it otherwise would, i.e., back to No. 1. In a longer missive, that is, my friend may well have not conceded this point, but it’s still worth noting that he did not argue that “diversity” makes courts “act more wisely” here.

I don’t think it unfair for me to say that the thrust of my friend’s argument reduces to the same point that I quoted Justice Ginsburg making, here: that having no women or only one woman or, by extension, no Latinas on the Court simply “doesn’t look right.”

“[I]t would seem exceedingly odd to most (I suspect) people,” he writes, if after all these years the Court “had still never had a single woman or black justice....” Any presidential attempt to argue that the only criterion was quality, presumably no matter how truthful, would be seen as “a rationalization for continuing an old-boy-network approach to things and freezing out groups that had, of course, long been frozen out by raw discrimination.” Moreover, “the appearance created” would be destructive, etc.

Let us grant that this argument is true. Quality arguments are regarded by many as mere rationalizations; “the appearance” of an all white and/or all male Court doesn’t “look right.” This argument may may be entirely symbolic, may rest entirely on appearances, but symbols and even appearances are important. It is not a weak argument.

The strongest response to it, I think, is not to argue that it is wrong, that symbols of inclusion are not powerful and important. Rather, the strongest reply is to assert that its appealing symbolism is achieved at too high a cost and, even more significant, that the symbolic argument opposing it is even stronger.

That opposing argument, of course, is the core value (or perhaps formerly core value) that every American should be treated by his government “without regard” to race, creed, color, or, more recently, gender. Now I’ve already acknowledged (if begrudgingly) that presidents have the discretion to disregard that principle, at least to a degree, when making a small number of appointments, but I’ve also insisted that doing so is not wise or good.

Actually, disregarding the “without regard” principle — and the necessarily accompanying argument that it should be disregarded — is worse than unwise. It’s a contagious, corrosive argument. It reinforces the perception that merit arguments are mere fig leaves for racism. It encourages everyone to disregard it — if the president can cast aside the “without regard” principle whenever she wants to appeal to a particular constituency, everyone will ask, why can’t the employer, the admissions officer, the contracts office, etc.? Does anyone believe that, once the point has been granted that it is legitimate to set aside the “without regard” principle for appointments to “collegial” courts, it will be possible to resist it anywhere “collegial” activity takes place or, for that matter, for appointments to benches that are not “collegial,” such as the district courts?

Symbolism is important, but the symbol of non-discriminatory equality is far more powerful and far more important than the symbol of racially and ethnically proportional representation throughout society. And the cost of discarding and thus undermining the “without regard” principle is far greater than the benefit of having the race, ethnicity, and gender mix that “looks right.”

UPDATE II

Friend replies:

You are correct to infer that I think that the argument that adding a Hispanic would make the Court more wise is weak, though not nonexistent. I think that adding Thurgood Marshall, on the other hand, may well have given his colleagues a far better appreciation of racial realities than they had before.

I take it that you would indeed take the position that an all-white-male Court through our history and down to today would still be better than presidents taking into consideration ethnicity and sex. Looking for a justice from, say, the South, or the West, or anywhere except Harvard, would be different, I assume, given the special toxicity of using race and sex as selection criteria.

I also wonder whether the political world is so deep into diversity as to make your approach (which I share to a considerable extent) untenable in the real world though appealing in principle. The Democrats seem hopelessly beholden to identity politics. And the Republicans, who look more and more like the white male party, seem to think that they only dig themselves a deeper hole if they take the diversitycrats on. See, e.g., President Bush’s applause for Grutter, plus the absence of any very great protest by other Republican leaders. Cf. the first President Bush’s pretense that Clarence Thomas was “the best qualified.”

Here’s a slightly edited version of my reply:

I think you’re right about Marshall. But also, given his record of victories with the [NAACP Legal Defense Fund] and subsequent judicial experience, I think a persuasive argument can be made that it didn’t require a racial thumb on the scale to justify his appointment, as it did ... for Clarence Thomas. (Ironic admission against interest: since Thomas, to my way of thinking, has turned out to be an excellent Justice, he’s actually an exhibit for the proposition that the effects of affirmative action aren’t always bad....)

As for my feeling about “an all-white-male Court” from the beginning of time on, I try to be an absolutist on this issue, but I can't quite make it. Non-discrimination is and should be both a principle and a rule, but there are exceptions, such as the (very rare but not non-existent) bona fide occupational qualification (undercover agent in a black gang, etc.). And, as I've said, potential Supreme Court nominees can't claim, and presidents have no legal obligation to recognize, a right to be treated without regard to race, etc. So, I'm conflicted about your question, but here are a few responses:

• Recognizing this ploy as something of a cop-out, I could argue that race-based appointments were justifiable immediately on the heels of Jim Crow etc., much as the original proponents of affirmative action (unlike its modern defenders) went to great lengths to emphasize that they did not reject the “without regard” principle, that AA was a drastic but strictly temporary measure. In this they were rather like those who justify prior censorship of troop ship schedules during wartime without rejecting the First Amendment in principle. Exception proves the rule, or some such. So, I have some trouble saying race should never, ever have been taken into account, but I have no trouble saying it should not be now and into the future, down the slippery slope where Hispanics, Native Americans, Muslims, etc., etc. would all have to be “represented.”

• In fact, if you’re allowed the hypothetical — an all white court down through history up to today — I could reply with my own counter-factual, that the best solution would be for it never to have been taken into account. Not to exclude, not to include. But that’s water over the dam. If we let bygones be bygones, I have no hesitation in arguing that from now on an all-white-male Court would be preferable to a president implementing and honestly describing even your slight-thumb-on-the scale policy by announcing, “I think diversity is so important that I’m willing to compromise on quality (but only a little), and so I hereby nominate Ms. Latina to the Court. She’s almost the best person I could find.”

• And yes, I think “balancing” on any criteria other than race, religion, ethnicity — such as your geographic example — would be unobjectionable. Just as I argue about college admissions, I rather like “merit” as traditionally defined myself, but I think colleges both are and ought to be free to ignore it in favor of preferences to just about anybody they want ... except on the basis of the rightly protected categories of race, religion, ethnicity.

• As for whether we’re “too deep in diversity” to get out, I’m afraid you’re right. “Diversity” has become an article of faith, and its entrenched legions of affirmative action officers, etc., may now be buried too deep to uproot. But we can try. And there are some historical examples that provide hope to those of an optimistic disposition: look at the odds facing Churchill up to Pearl Harbor; Republican presidential prospects after Goldwater; Republican presidential prospects after Nixon; Republican Congressional prospects before 1994; etc. And I certainly hold no brief for the Republicans, who after all gave us majority-minority districts, backed away from Rep. Cannady’s colorblind bill, failed to support Prop. 209 and the subsequent state initiatives in any significant way, didn’t take the stand they should have on the Michigan cases, etc., etc.

My one hope is based on the fact that I believe that not only a majority but a preponderant majority of the American people still believe strongly in the “without regard” principle, as evidenced by the votes in every state except Colorado where the question was presented (despite massive distortion from the opponents) and by overwhelming survey data where the questions have been fairly presented, i.e., not do you support affirmative action, etc.

UPDATE III [24 May]

I had some additional thoughts, and sent my friend the following.

Honesty is important. If a policy is good, wise, and just, shouldn’t it be possible to describe it accurately? With that in mind, would you really be comfortable with a president, or anyone, making a decision re hiring, admission, etc., saying what I had the president say above, i.e., that diversity is so important that we must compromise (though only a little) on quality? Insofar as you are concerned about the “appearance” of justice, don’t you worry that such compromises, honestly described, are insultingly patronizing?

As you are no doubt aware, the real true-believing diversiphiles have no such worries. Unlike you, they have discarded the “without regard” principle lock, stock, and barrel. They honestly believe, or at least claim to believe, in “race consciousness,” that everyone should be treated with regard for race, etc. They don’t have to compromise any on quality in their hiring, admissions, etc., they say, because they believe that race etc. is a legitimate component of “qualifications.” That’s why they can so easily argue that if it’s legitimate to give preference for geography, athletic ability, legacy status, etc., it’s legitimate to give preference based on race. Race, to them, is just one more identifying characteristic, like all the others.

Here’s my question for them: If you really believe that race should no longer be treated as a special, protected category, that it is perfectly legitimate to distribute benefits and burdens based on race, why not end our current hypocrisy on the issue, not to mention endless litigation, and simply repeal all the civil rights legislation whose text (accurately reflecting the purpose and intent of its drafters) requires that people be treated “without regard” to race? (See Kennedy and Johnson Executive Orders on Affirmative Action, 1964 Civil Rights Act, etc.) It would not be necessary to repeal or amend the 14th Amendment since the Court has already proved itself more than capable of interpreting “equal protection” to allow racial preference. Any diversiphile not willing to do that, it seems to me, is a hypocrite.

You yourself are clearly not one of these true-believing diversiphiles. You’re willing for the state’s thumb to exert only an ever so slight pressure on the racial scale, and you clearly recognize the compromise with valid principle required to do even that. But since you asked me whether an all-white-male Court forever was an acceptable result of my adherence to the “without regard” principle, let me ask you: knowing what you now know, would you have advised the drafters of the 1964 Civil Rights Act to tone down their colorblind language, to allow reasonable and well-meaning state actors to take race into account? To promote honesty and avoid hypocrisy and legal sleight-of-hand, shouldn’t that Act and others be revised to allow even the small thumb pressure you advocate? And, going back a bit farther in our hypothetical time machine, would you have told John Marshall Harlan to cool it with his talk of a “colorblind Constitution”? Should Thurgood Marshall and the NAACP/LDF have been more qualified and nuanced in their endorsements of colorblind equality through the years up to, and especially including, Brown? (See my Historical Brown-Out.)

Stay tuned.

Posted by John Rosenberg at 8:24 PM | Permalink | Say What? (3) | TrackBacks (0)

Back in March the Department of Justice settled a lawsuit against the Portsmouth, Virginia, fire department for allegedly discriminating black applicants for entry-level firefighter positions. (I missed this when it happened, and would have continued to miss it if the ever-watchful Roger Clegg had not brought it to my attention.)

According to the Justice Department’s complaint,

African American applicants passed the written examination at a rate of approximately 42 percent, while the corresponding pass rate for white applicants was approximately 86 percent....

According to this report, the complaint also alleges that,

[w]hile African Americans made up about 29 percent of the applicant pool, they represented only 17.9 percent of the applicants who passed the test, according to the complaint.

I suppose another way to say the above would be that while whites and Hispanics made up 71% of the applicant pool, they were (only?) 82.1% of the applicants who passed. A “disparate impact,” to be sure, but worth a federal case?

Nor was the Justice Department’s desire to stamp out what it must regard as the fires of discrimination raging across Virginia limited to the Portsmouth Fire Department. As the source just quoted notes,

In 2006, the Justice Department determined that Chesapeake and Virginia Beach discriminated against black and Hispanic applicants on the math portion of their entrance exams. Both cities also reached settlements with the Justice Department.

Now I am certainly no expert on testing, but even a brief look at this issue suggests that the Justice Department (and cities like New Haven, cited above) regard any test in which black applicants do not pass in proportion to their numbers as discriminatory. Nor is it at all clear how the math section, the primary villain, of the test discriminates against blacks. Is there some black form of math that the test does not test?

As it happens, the National Firefighter Selection Test, and its companion, the National Police Officer Selection Test, are widely used across the country. Florida is typical:

The Florida Police Chiefs Association now provides the National Police Officer Selection Test (POST), the National First and Second-Line Supervisor Tests, and the National Dispatcher Selection Test (NDST). In addition we offer the National Firefighter Selection Test (NFST), an exam similar to the POST, but for entry-level firefighters.

Tests such as these have often been validated, such as in this study. And the producers of the tests respond to the complains here.

Finally, if disproportionate fail rates, alone, proves to the Department of Justice’s satisfaction that a test is discriminatory, why not simply file a discrimination complaint against all the Virginia Department of Education?

VIRGINIA GRADUATION RATES SHOW NEED FOR IMPROVEMENT

Virginia’s Class of 2008 had an on-time graduation rate of 82.1 percent, and a dropout rate of 8.7 percent, according to new data from the Virginia Department of Education. The worse news is that the dropout rate for black students is twice the rate for white students, and the dropout rate for Latino students – 20 percent statewide – is three times that for white students.

If the Department of Justice knows of a math test that black firefighter and police applicants pass at the same rate as whites, why is it keeping that test’s identity a secret? If it doesn’t know of one, perhaps its lawyers could devise one and share it fire and police departments everywhere.

Posted by John Rosenberg at 3:15 PM | Permalink | Say What? (0) | TrackBacks (0)

Dems Urge A Race-Based Bailout has been UPDATED. Twice.

Posted by John Rosenberg at 10:14 AM | Permalink | Say What? (0) | TrackBacks (0)

You’re all familiar by now with the New Haven Fire Department, which decided not to promote anyone to lieutenant or captain because no blacks passed the promotion exam. (See here, citing a bunch of earlier discussions of Ricci v. DeStefano.)

But you probably haven’t heard about the police department that left senior positions unfilled rather than promote whites. That’s because this particular police department is in South Africa.

According to court documents, the government's emphasis on racially representative employees has resulted in the South African Police Services (Saps) opting to leave positions for senior forensic scientists vacant rather than appointing white scientists.

When the American South was segregated, discriminating against blacks, it was very much like South Africa. Now that the entire United States is promoting “diversity” by giving preferential treatment to blacks, it is very much like South Africa.

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

... in Malaysia.

Malaysian Prime Minister Najib Razak has outlined plans to dismantle the decades-old preferment system for ethnic Malays.

He told newspapers in Singapore that the long-term benefits of ending the scheme would outweigh the “pain”....

In an interview for Singapore's Straits Times newspaper, Mr Najib said that ethnic quotas damaged his country's competitiveness and ran counter to global trends....

There is much our new president, always sensitive to international opinion, could learn from Malaysia.

Posted by John Rosenberg at 1:54 PM | Permalink | Say What? (0) | TrackBacks (0)

[NOTE: This post has been UPDATED twice]

According to an article in The Hill yesterday,

High-ranking House Democrats are urging the Treasury Department to prop up minority-owned broadcasters suffering from a lack of capital and lost advertising revenue amid the economic slump.

House Majority Whip James Clyburn (D-S.C.) is leading an effort to convince Treasury Secretary Timothy Geithner to take “decisive action” by extending credit to this sector of the broadcasting industry.

Clyburn and other senior members, including House Financial Services Committee Chairman Barney Frank (D-Mass.) and Ways and Means Committee Chairman Charles Rangel (D-N.Y.), argue that minority-owned broadcasters are sound businesses, but that the recession could undermine the government’s efforts to diversify the airwaves.

Not surprisingly, “[a] number of members from the Congressional Black Caucus signed the letter, too.”

At this late date there is no reason to be surprised by yet another example of “diversity” meaning nothing more than a racial spoils system urged by Democrats, operated by Democrats, for (black) Democrats.

UPDATE

For a hilarious discussion of a visit to the Disney World national meeting of the National Multicultural Business Conference, put on by DiversityBusiness.Com (the largest organization of “diversity-owned businesses”), see Matt Labash’s article in The Weekly Standard, “Where Everybody Is Disadvantaged: Postcards from the Diversity Follies.” (HatTip to, as usual, Roger Clegg)

UPDATE II [21 May]

Roger Clegg argues that the Supremes would be unlikely to go along with such a race-based scheme. “The Court upheld the use of racial preferences by the Federal Communications Commission in 1990, but overturned that decision in 1995,” he notes. “Also, among the 1990 dissenters was Justice Kennedy (and Justice O’Connor, by the way).”

An additional thought: the letter from the Black Caucus members, noted above, stated:

While many jobs are at stake, a more important principle — the government’s fundamental interest in promoting a diversity of voices, including service to underserved communities — is severely threatened.

But, is a radio “voice” by definition “diverse” simply because the station is owned by a black person? What if that station hired white or Asian announcers, news readers, disc jockeys? (That has happened, hasn’t it?) Are their voices “diverse,” too? What if a black-owned station played primarily classical music — wouldn’t that, too, be “service to an underserved communit[y]”? If so, why should a station providing such programming be bailed out only if its owner is black?

For that matter, what if a “black talk” radio station — or perhaps that should be black “talk radio” station [but, given the “diverse” argument, perhaps not] — featured a talk diet heavily slanted toward black conservatives, including prominent slots for Rush Limbaugh and Sean Hannity? Would the Black Caucus crown argue that such a station did not provide a “service to underserved communities,” even though the station owner was black?

Is it asking too much to hope that someone in Congress or the FCC will ask these, and similar, questions?

On second thought, don’t answer that.

Posted by John Rosenberg at 10:39 AM | Permalink | Say What? (0) | TrackBacks (0)

We’ve seen (most recently here, citing six earlier discussions) that the New Haven Fire Department refused to promote anyone to lieutenant or captain because no blacks passed the required exam.

Now, thanks to Roger Clegg’s note on NRO’s Bench Memos Phi Beta Cons, I see from an article in the Washington Post that the College Board has dropped an Advanced Placement exam in Latin, explaining that its decision “was related to the number of minority students taking the exam.”

So, no promotions because not enough blacks passed an exam; then no exam because not enough minorities take the exam. If this principle is valid, shouldn’t cost-conscious colleges begin dropping courses, or maybe even whole departments, because an insufficient number of minorities enroll in them? Wouldn’t doing so increase the number of classes that are “diverse”?

If “diversity” is as essential as its proponents claim, after all, how can such un-“diverse” classes be worthwhile?

ADDENDUM

Now that I’m thinking about it (see, thinking about “diversity” is frequently a mistake), perhaps what colleges need is a new “diversity” distribution requirement. No, not the “diverse” subject matter that many of them already require (“Diverse People in American History,” “Race, Class, and Gender in Post-Colonial Aboriginal Societies,”etc.), but a requirement that a certain percentage of one’s classes contain a “critical mass” of, or at least a few, “diverse” students.

Of course such a requirement would force registrars to keep close tabs on the racial identity of students, but since that information is already heavily used by the admissions offices updating the computers shouldn’t prove that difficult.

ADDENDUM II

To have the most beneficial effect I think the new DDR (Diversity Distribution Requirement) would have to, in the manner and spirit of all “diversity” measures, treat the “diverse” and the un-“diverse” students differently. The un-“diverse” students would be required to take a certain number of courses in which there were also some number of “diverse” students. The “diverse” students, by contrast, would have a ceiling imposed on the number of courses they could take in which more than a certain number of “diverse” students enrolled, in order to prevent the academic self-segregation that so often occurs. This latter aspect of the DDR would have the added benefit of increasing the number of “underrepresented” minorities in math, science, and engineering courses, and hence being poured into the pipeline for possible careers in STEM fields.

True, the DDR would reduce the amount of choice and control over their courses allowed to students, but all distribution requirements do that. Moreover, the demand for “diversity” long ago established the principle that it is legitimate, or even required, to include, exclude, and otherwise distribute students based on their race.

Posted by John Rosenberg at 11:02 AM | Permalink | Say What? (5) | TrackBacks (0)

[NOTE: This post has been UPDATED]

Can anyone explain to me the difference between “diversity,” as actually practiced (which distinguishes it from promoting actual diversity), and “racial balancing”?

It’s an important, even crucial, distinction, since the Supreme Court has repeatedly made it clear that racial balancing “for its own sake” is impermissible. Most recently, for example, in Parents Involved, prohibiting the racial assignment of students in Seattle and Louisville, Chief Justice Roberts, in his majority opinion, noted that a fatal flaw of the “racial balance” sought by the school districts is that it was defined “solely by reference to the demographics of the respective school districts.” Continuing, he emphasized:

We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Freeman [v. Pitts, 503 U.S. 467], at 494. See also Richmond v. J. A. Croson Co., 488 U.S. 469, 507 (1989) ; Bakke, 438 U.S., at 307 (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected … as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U.S., at 330.

Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U.S. 900, 911 (1995).... Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra, at 495.... An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’Connor, J., dissenting). [Parts of citations omitted]

So, let me repeat my initial question: how is “diversity” for its own sake (and whose other sake is it for?) any different from “racial balance for its own sake”? I certainly can’t find a difference in most of the ritualized defenses of and demands for “diversity” that emanate from the foggy swamps of higher education.

Consider this typical example from Penn, picked only because it appeared in my inbox this morning (HatTip to reader Ed Chin). Responding to a recent report from the Council of Graduate Schools calling for more “diversity” in graduate education,

Mary Lou de Leon Siantz, Penn’s School of Nursing assistant dean of diversity and cultural affairs, agreed that more diversity is necessary in Penn graduate schools.

The Nursing School, for example, recently started an initiative to diversify the school and create a model for nursing schools across the country.

“This vision has changed the face of nursing at all levels to reflect the diversity of a global society, which is what Penn is about, and to make Penn’s School of Nursing the model for diversity,” de Leon Siantz said. [Emphasis added]

So, the University of Pennsylvania, formerly thought of as one of the nation’s leading institutions of research and learning, is now “all about” being a demographic reflecting pool.

Aside from this degradation of Penn’s mission, what does “diversity,” reflected in the face of the nurse, actually contribute to the treatment of patients? Does that matter, or is facial reflection itself the only justification for a “diversity” that has “changed the face of nursing at all levels”? Unless Diversity Dean de leon Siantz can explain what facial diversity contributes to what nurses actually do, isn’t this determination “to reflect the diversity of a global society” simply “‘diversity’ for its own sake”?

Penn’s defense of “diversity” is no different from, certainly no worse than, the sort of defense offered by all sorts of other institutions, many of them far removed from higher education (which, it’s important to remember, remains for the moment the only area of American life where the Supreme Court has legitimized the sorts of racial preference necessary to implement it).

Take the City of New Haven, for example. (No, you take it.) As we’ve seen in discussions of the case of the firefighters there who were denied promotion because not enough blacks passed the promotion exam (see here, here, here, here, here, and here), the City of New Haven was distraught that promoting only the 19 whites and one Hispanic who passed the promotion exam would leave its fire department insufficiently “diverse.” A largely unrebutted claim of the Ricci plaintiffs, for example, is that New Haven discounted the results of the exam, as the District Court put it, “in the interest of pleasing minority voters and other constituents in New Haven whose priority was increasing racial diversity in the ranks of the Fire Department.” Or again: “As the transcripts show, a number of witnesses at the CSB hearings mentioned ‘diversity’ as a compelling goal of the promotional process.”

Compelling? See Chief Justice Roberts and others, quoted above.

And again, what is the justification of the New Haven Fire Department’s, any fire department’s, desire for “diversity”? Are there culturally different forms of fire that require culturally different skills in fire fighting? Is race a valid proxy for possessing those skills? When his or her house is burning down, Roger Clegg has pointedly asked, do average Americans “care about anything but the ... firefighter’s ability?”

Let’s hope the Court recognizes that “diversity,” in most of its current applications, is simply “diversity” for its own sake, and thus that it is no better and no more acceptable as a rationale for racial preference than racial balance for its own sake.

ADDENDUM

A few days ago, in asking Is Judge Sotomayor A Wise Latina Woman?, I quoted her remarkable assertion from a panel discussion in Berkeley several years ago, a quote that for some reason has not been treated with the shock and awe it deserves:

I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Now, this assertion, with its implication that all white males are benighted by a thinness of experience that leaves them bereft of the wise empathy necessary to judge those different from themselves, is extreme, but don’t all diversiphiles believe something quite similar?

Although Judge Sotomayor’s comment is indeed extreme, and deserving of more attention than it has received, doesn’t it in essence simply state what all the “diversity” arguments logically imply? Most diversiphiles may not assert — indeed, may not even believe — that a wise Latina woman/black/whatever will more often than not reach a better conclusion than a white male, but must not all diversiphiles believe that a court with such a person or persons will most of the time reach better conclusions than a court without? If that weren’t true, after all,what would be the point of “diversity,” aside from “racial balance for its own sake”?

Posted by John Rosenberg at 11:30 AM | Permalink | Say What? (1) | TrackBacks (0)

[NOTE: This post has been UPDATED]

Some behavior is so vile that it is described as beneath contempt (“It's so contemptible that it doesn’t even rise to the level of contemptibility. Contemptible is too flattering a designation for anything so contemptible”.) How then do you describe comments that provide such a bizarrely, breathtakingly audacious indictment of the speaker's own policies as to leave critics tongue-tied, incapable of coherent criticism?

I am thinking, of course, of President Obama’s warning yesterday that our long-term debt is “unsustainable”:

May 14 (Bloomberg) -- President Barack Obama, calling current deficit spending “unsustainable,” warned of skyrocketing interest rates for consumers if the U.S. continues to finance government by borrowing from other countries.

“We can’t keep on just borrowing from China,” Obama said at a town-hall meeting in Rio Rancho, New Mexico, outside Albuquerque. “We have to pay interest on that debt, and that means we are mortgaging our children’s future with more and more debt.”

Holders of U.S. debt will eventually “get tired” of buying it, causing interest rates on everything from auto loans to home mortgages to increase, Obama said. “It will have a dampening effect on our economy.”

“Beneath criticism” or even “beneath ridicule” are woefully inadequate. Help me out here, because, still breathless and tongue-tied, I haven’t been able to think of a term or phrase to capture the monumental effrontery of Obama’s apparent confidence that we will not associate his own unprecedented, massive spending and borrowing with the dangers of which he warns. It’s as though George III had cautioned of the dangers of taxing the colonies, Alexander Hamilton had warned us of the dangers of a central bank, or Jefferson Davis had avowed that secession is a risky business.

Even those allusions don’t rise to the Obama-provided occasion. Perhaps as close as it’s possible to come, or at least for me to come, to characterizing these comments adequately is to say they call to mind the proverbial child who murders his parents and then pleads for sympathy because he’s an orphan. Obama increasingly appears to be a classic addict — in his case, to an overweening government. As such his comments in New Mexico suggest an articulate alcoholic who stands before his AA group and solemnly announces, “I’ve finally realized that I can no longer afford to continue my excessive drinking binge. I’ve used up all my savings, forced my family and friends into debt, and there’s simply no money left.... I’m going to have to find new sources of funds.”

That new source of funds to support his and the Democrats’ addiction that Obama’s comments telegraph that he will discover? Even more and higher taxes than he’d first anticipated.

UPDATE

James Taranto makes the same point:

When Obama lectures college grads on the virtue of thrift, it reminds us of that old joke about the definition of chutzpah: when a guy murders his parents and then pleads for mercy because he inherited all their debts.

Posted by John Rosenberg at 11:00 AM | Permalink | Say What? (2) | TrackBacks (0)

Apparently so, at least in part, according to Ruth Bader Ginsburg, the only woman currently on the Court.

Before O’Connor’s retirement three years ago, Ginsburg said in a speech last month at Ohio State, “people could see that women came in all sizes and shapes, we didn’t look alike, and we didn’t talk alike. ... Now, there I am all alone, and it doesn’t look right.”

That quotes comes from a Washington Post OpEd yesterday by Ruth Marcus, oddly enough also a woman, who declared that Ginsburg’s replacement must also be a woman.

Who would have thought that, with the retirement of Sandra Day O'Connor and the serial confirmations of three white men after Ginsburg joined the court, the justice would find herself another one-at-a-time performer?

Which is why it’s so essential that President Obama's nominee to replace David Souter be a woman.

Which is why? What which is that? Must we be sent on a which-hunt to find the principle on which (if you’ll pardon the expression) Marcus’s fiat is grounded?

Marcus acknowledges that “[h]aving more than one woman on the Supreme Court is partly a matter of symbolism.” Fine. Let’s grant, with Ginsburg, that “it doesn’t look right.” But is that all there is to the argument, i.e., what exactly is that which again?

About the only other comment in Marcus’s column that sounds like an attempt to make an argument beyond symbolism and looks is her assertion that “the stark fact is that having one female voice out of nine is not consistent with women's being half the talent pool.”

That may well be true, but then it is equally true that “stating the ‘no men need apply’ litmus test so categorically,” as Marcus admits she’s doing, also violates the core value of treating individuals, and making important appointments, “without regard” to race, creed, color, or sex. In fact, it goes further than violating that principle by “taking sex into account”; it rules out candidates absolutely on the basis of sex.

But since Ginsburg, and presumably Marcus as well, have long since rejected the “without regard” principle in favor “taking whatever (race, sex, ethnicity, etc.) into account,” let’s set that powerful principle aside. Even ignoring the principled objection to Marcus’s “no men need apply” doctrine, why must women go to the front of the bus full of potential appointees? They, after all, are not the only “underrepresented” — or even unrepresented — group. There are also no Hispanics, Asians, or Muslims on the Court, and never have been. Heck, there’s not even a white Southerner on the Court. Why exactly should all these groups, and more, be forced to stand behind women? Is there any principled way to choose among “underrepresented” or even unrepresented groups? If so, Marcus certainly doesn’t tell us what it is.

Finally, it’s worth pointing out that Justice Breyer should be thankful that President Clinton did not completely follow Ruth Marcus’s and Justice Ginsburg’s “look like” appointment philosophy. If he had, Breyer never would have been nominated, since his nomination in 1994, following Justice Ginsburg’s the year before, meant that with two of nine justices Jews became heavily “overrepresented” when Breyer joined the Court. (Jews are about 2.2% of the U.S. Population, but were 22% of the Court with both Ginsburg and Breyer.)

Choosing or rejecting people for anything on the basis of race, sex, gender, ethnicity, or religion is an ugly business. The less we have of it, the better — no matter what the results look like.

Posted by John Rosenberg at 10:55 AM | Permalink | Say What? (2) | TrackBacks (0)

ABC News reported yesterday that University of Medicine and Dentistry of New Jersey medical student Paolo Serodio was called into the dean’s office several times, forced to undergo a psychiatric exam, and finally expelled for responding to a question by “identifying himself during a class cultural exercise as a ‘white African-American.’” (HatTip to Inside Higher Ed)

He has filed a lawsuit in U.S. District Court that

traces a series of events that Serodio maintains led to his 2007 suspension, starting with a March 2006 cultural exercise in a clinical skills course taught by Dr. Kathy Ann Duncan, where each student was asked to define themselves for a discussion on culture and medicine.

After Serodio labeled himself as a white African-American, another student said she was offended by his comments and that, because of his white skin, [he] was not an African-American.

According to the lawsuit, Serodio was summoned to Duncan’s office where he was instructed “never to define himself as an African-American … because it was offensive to others and to people of color for him to do so.”

Serodio describes himself as a third-generation African of Portuguese descent whose great-grandfather moved to Mozambique. He came to the U.S. in 1984 to attend NYU, married, and became a naturalized citizen in the early 1990s.

His plan, he said, was to become a doctor and join Doctors Without Borders where he could travel back to Africa to do charity work like his parents, either as an internist or possibly a neurologist. He started medical school, he said, when his eldest child was in first grade.

Serodio’s complaint seems more like 1984, or perhaps Animal Farm, than what most of us imagine medical education to be.

In September 2006, Serodio said he again was asked to define himself culturally as part of another course exercise. Again, according to the lawsuit he said he was a “white African-American.” And again, he was called to the course instructor’s office and told never to define himself that way again.

According to the lawsuit, Serodio then wrote an article for the student newspaper, titled “A More Colorful View Than Black and White,” in an attempt to explain his self-identification and to call for tolerance at the school.

But when complaints started pouring into Dr. I. Thomas Cohen, then the dean of student affairs, the lawsuit alleges that Serodio was called in again and told by Cohen that if he “lay low for awhile” Cohen would see that a record of the incident would not be placed in Serodio’s transcript....

The lawsuit claims Serodio tried to stop publication on the newspaper article, but was too late. In response, the professor of the latter cultural class posted a reply on the bulletin boards at the medical school stating that Serodio “had failed to learn professionalism and humanism.”
....
In January 2007, Serodio was made to promise he would never again write in any public forum at the school at the risk of facing disciplinary action, according to the lawsuit.

After further complaints he was forced to undergo a psychiatric exam. Although the exam found him “fit for medical student functions,” he was subsequently expelled.

There must be another side to this story (musn’t there?), but according to ABC News “[m]essages and e-mails left with Duncan and [Dean of Student Affairs I. Thomas] Cohen as well as UMDNJ Dean Dr. Robert Johnson were not returned.” In addition,

[n]either the American Civil Liberties Union nor the National Association for the Advancement of Colored People responded to messages seeking comment on the meaning of African-American.

Perhaps part of the problem is that there’s too much concern with “culture” at UMDNJ.

Posted by John Rosenberg at 8:05 AM | Permalink | Say What? (4) | TrackBacks (0)

The Poynter Institute is a combination post-graduate school, standard setter, and ethics and diversity watchdog for American journalism, perhaps the most influential such center in the country.

Although its hope to instill a “recognition of the value of diversity in the newsroom and in life” is only one of nine items listed on its Mission Statement, it doesn’t take much time exploring the content and links of its various web pages to determine that preaching “diversity” is pervasive at Poynter. There’s a Diversity Bibliography, a DEL.ICIO.US Page For Diversity At Work, a regular column on “Diversity at Work,” a pointer (or would that be Poynter) to conversations about Ethics & Diversity, and a whole slew of Diversity Tip Sheets/Resources, one of which (just to give one example) instructs in Copy Editing For Diversity (“While it is good to talk the talk, it is even better to walk the walk.... Remember: Diversity is always a work in progress. But most papers get a failing grade in it because they are too lazy to go beyond the obvious. When you go back to your newsroom, raise the flag and reach for the skies.”)

Insofar as American journalism, or at least its established major media component, is a church preaching the sermon of “diversity,” The Poynter Institute would seem to be its Vatican. I certainly haven’t looked in all its cathedrals, and certainly not in all its nooks and crannies, but there don’t seem to be any heretics or even agnostics here, no one to challenge or even raise skeptical questions about the one true faith. “Diversity” may be the Sermon emanating from Mount Poynter, but there’s no evidence of any diversity about “diversity” that’s easy to find.

I don’t have time to look at each chant of the “diversity” mantra that permeates the Poynter pages, but just to give you an idea of the message that Poynter pushes let’s look at one example in some detail. Sally Lehrman has written a number of the “Diversity at Work” offerings, and her most recent one, Scholars Share Ideas about How Journalists Can Better Cover Race, provides a good picture of the Poynter perspective. “[W]hen more than two dozen experts met at the University of Oregon in April to talk about racial formation in the 21st century,” she writes, “I took the occasion to ask what reporters often do wrong when covering race, and how they could do better.”

One would have thought that races, whatever they are, had already been formed, but race, like “diversity,” apparently remains “a work in progress.” Indeed, the meeting's plenary speakers assert, “race is not a fixed, stable, or objective idea.” Instead, it “is a set of categories that the American people constantly police, challenge and change.”

Let’s leave races forming and unforming aside for now, since the assembled scholars at the conference were only too happy to tell her, through their presentations, what reporters and other observers do wrong by race and how to do right. A quick look at the invited scholars and their wares will reveal that there was no much diversity of opinion about “diversity” in Oregon there is at Poynter, but then, as I’ve already indicated, I doubt that Poynter’s Ms. Lehrman was looking for perspectives that differ in substantial ways from her own.

So, what did Ms. Lehrman learn in Oregon and share with the readers of her “Diversity at Work” column? Well, for starters, Devon Carbado, professor of law at UCLA, “laid out some traps that all too easily ensnare us by muddling our writing and introducing bias.” One of those “traps” is

Using “racial preference” as a synonym for “affirmative action.” Affirmative action came into being as a way to equalize opportunity and correct a systemic preference for whites. Instead of giving preference, it is a race-conscious remedy intended to undo preference.

Now this is completely, but revealingly, wrong, although it’s not clear from Ms. Lehrman’s article whether its wrongness comes from Prof. Carbado’s lesson or what Ms. Lehrman thought she learned from it. And not only is it wrong, but the link it includes points to a site that provides relevant portions of the two Presidential Executive Orders through which affirmative action “came into being,” Kennedy’s Executive Order 11025 and Johnson’s Executive Order 11246, proving that when it “came into being” affirmative action was in fact diametrically opposed to any “race-conscious remedy.” Both Executive Orders, as I’ve quoted many times (most recently here), required government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. [Emphasis added]

Ms. Lehrman apparently never read the two Executive Orders she cited, and as a result she (or Prof. Carbado, if Ms. Lehrman was just taking notes and repeating what she heard) fundamentally misstated what they said. So much for that “trap,” but wait; there’s more! Here’s another lesson Lehrman learned, from another presenter:

Address inequality on a regular basis, suggested Eduardo Bonilla-Silva, a sociologist at Duke University. “Race still matters in every aspect of our lives,” he said. It's not just a historical problem, but lived out routinely in schools, workplaces and newsrooms every day.

Recognize the difference between inequality and discrimination, Bonilla-Silva added. Notice when your own work, and the words and phrases you use, create a discriminatory "racial grammar," as he puts it, that elevates white people's concerns above others.

According to the abstract of Bonilla-Silva’s article, he argues (presumably all) “whites (and some minorities) do not see and interpret” American racial realty “the way they should”

because there is a racial grammar — a deep level of race cognition which like grammar operates collectively and interpelates [sic] subjects in an almost invisible way — that shapes the views, emotions, and even actions of all subjects in the racial polity. The “data” I will use to make my case will not be the one [sic] often invoked by social scientists albeit at the end of my lecture, I will address why I believe empirical work on racial disparities is quite limited as a tool to transform the racial order of things. I will conclude by exhorting the audience to realize the severe limitations of the “rational” approach to racial change and urge them to work, “as social analyst Bob Marley articulated so well, for mental, epistemological, and practical liberation from the tentacles of white supremacy.”

I’m tempted to say, if this abstract provides a valid glimpse of Bonilla-Silva’s alternative to a “‘rational’” approach to “transform[ing] the racial order of things,” I think I’ll stick with the rational approach. I may be wrong, but I suspect that most journalists and editors — even those determined through their work to promote our “liberation from the tentacles of white supremacy”— would also prefer to think they’re sticking with the “‘rational’ approach.”

Silva-Bonilla, in short, repeated here what he has said on numerous similar panels, such as this one at Duke in March where, according to someone in the audience, he attacked “color-blind racism” and asserted that a “color-blind society (one in which people are treated equally under the law) enables whites to perpetuate the 'systemic advantages' they have over minorities.”

Does Ms. Lehrman really think these values are what journalists should learn at Poynter and bring to their own organizations? Since Bonilla-Silva is a professor of sociology at Duke, I wonder if she thought to check on any role he may have played in the late, unlamented attack by many Duke faculty, the notorious “Group of 88,” on the Duke lacrosse team. They were so convinced the team was guilty of rape (they were white men, many of them “privileged,” weren’t they?) that had no need to wait for evidence before condemning them and everything they were thought to stand for.

If she had done no more than check KC Johnson’s blog, Durham-in-Wonderland, she would have found that Bonilla-Silva was a prominent, “clarifying” member of the Gang of 88. From a KC Johnson profile of Bonilla-Silva:

In effect, he has argued that a quest for white supremacy is embedded within American society, and can be overcome only through government intervention to create an “equality of outcome” between whites and minorites.

At various points in his teaching or scholarship, Bonilla-Silva has used other names for the country of which he is a citizen. In his most recent book, his preface described the United States as “gringoland.” In a course syllabus used at his previous institution, Texas A&M, he wrote, “We conclude the class with a discussion of some of the solutions that have been proposed to deal with the racial dilemmas plaguing the United States of Amerikkka (I will remove the three Ks from this word when the USA removes racial oppression from this country!).” Without explanation, he dropped two of the “Ks” in a forthcoming essay entitled, “Latinos in the Midst: Where Will Latinos Fit in the Emerging Latin America-Like Racial Order in Amerika.”
....
Racism without Racists [one of his books] opens with the following claim: “In this country, racial ‘others’ of dark complexion are always viewed as incapable of doing much; we are regarded and treated as secondary actors only good for doing beds in hotels or working in fast-food restaurants” [emphasis added]....

According to Bonilla-Silva, the United States has scarcely moved beyond the era of legalized segregation. Contemporary America, he has written, features “a rearticulation of some racial practices characteristic of the Jim Crow period of race relations.” This new racialized system, which he calls “colorblind racism,” is upheld in part “through social control (the criminal justice system, arrest rates, etc.).” .... Bonilla-Silva appears to believe ... that Jim Crow-like attitudes among whites provide the only logical explanation for the disparate incarceration rates between whites and African-Americans....

Beyond criminal justice issues, what are some of the negative characteristics of this “racialized system” that Bonilla-Silva has detected? Meritocracy, for one. Whites, the Group of 88 member claims, “justify racial inequality” by supporting merit as an avenue for advancement or admission to school; such color-blind racism only helps whites “justify contemporary white supremacy.”

In his writing, Bonilla-Silva regularly employs generic quotes, often invented by him, that he argues typify the “white” viewpoint. (These quotes almost always portray their “white” speaker as transparently racist)....

Bonilla-Silva denies that he seeks “to demonize whites.” After all, he noted, “Historically, many good people supported slavery and Jim Crow”—just like the “good people” in the current environment who “oppose (or have some reservations about) affirmative action”.... And, of course, branding those who oppose his views as the contemporary equivalent of slavery’s defenders gives a sense of how willingly Bonilla-Silva tolerates dissenting opinions.

When translating his theories into specific policy recommendations, Bonilla-Silva lapses into either the banal or the extreme. (Little else could be expected from someone who claims that “today there is a sanitized color-blind way of calling minorities niggers, Spics, or Chinks”) ....

The Group of 88 member has urged minorities to “become militant once again” and adopt “a new, in-your-face, fight the power civil rights movement.” The goal? This movement “must have at the core of its agenda the struggle for equality of results.” In other words, the traditional goal of civil rights activists in the United States—equality of opportunity—would be set aside, replaced by implementation of absolute quotas.

Bonilla-Silva has also devoted some thought to the education system—which is, he has claimed, a place to “nurture a large cohort of anti-racist whites.” For students at Duke, he’s had a direct message: “If you are a college student in a historically white college, you must raise hell to change your college” demographically.

But when minority students at his previous position, Texas A&M, didn’t support his agenda, Bonilla-Silva lashed out. After witnessing a panel in which black and Hispanic A&M students downplayed the racism that Bonilla-Silva sees everywhere, the professor dismissed them as racial Uncle Toms....

With typical overstatement, he compared the thematic difficulty of one of his A&M classes, “Sociology of Minorities,” to the intellectual challenges associated with studying “calculus or the second law of thermodynamics.”

The syllabus for the course stated that students needed to control their “body language” and avoid “irresponsible contestation” with his arguments. Bonilla-Silva further asserted that he would “not accept anecdotal ‘data’ (e.g., ‘I know this because Georgino Bushinsky Presidensky said so and he must know’).” The class ended with a lecture on “Amerikkka’s Racial Future and Social Policy Options to deal [sic] with Racial Problems.”

Ms. Lehrman closes her article by paying homage and, by implication at least, urging deference to “the experts who met at the University of Oregon” because they “have put decades of their lives into trying to understand race.”

“Diversity” sounds good, but when you see what its “expert” advocates actually advocate, it is much less appealing. I suspect that most of Poynter’s enthusiasm about “diversity” is little more than thoughtless, group-think, feel-good faddism, but if I’m wrong it would be instructive to see a column from Ms. Lehrman laying out exactly where — and more importantly, why — she disagrees with the pronouncements of the Duke Group of 88 “expert” whom she commends here to Poynter members and readers.

Posted by John Rosenberg at 7:32 PM | Permalink | Say What? (0) | TrackBacks (0)

The estimable Michael Barone writes today that “On Guns and Climate, The Elites Are Out of Touch,” and he cites compelling polling data to support that conclusion.

Many years ago, political scientists came up with a theory that elites lead public opinion. And on some issues, they clearly do. But on some issues, they don't. Two examples of the latter phenomenon are conspicuous at a time when Barack Obama enjoys the approval of more than 60 percent of Americans and Democrats have won thumping majorities in two elections in a row. One is global warming. The other is gun control. On both issues, the elites of academe, the media and big business have been solidly on one side for years. But on both, the American public has been moving in the other direction.

Barone could have added racial preferences to his list of controversial issues sporting a large gap between elite opinion and the public at large. There is by now a large body of survey data confirming this divide, although it is complicated by the fact, as the Gallup Organization has recognized, that

[s]upport for affirmative action has been known to vary depending on how the question is worded, particularly when the question describes the programs in more detail. Surveys conducted in the past five years by the major polling firms show a range of support from as low as 38% (when the term "racial preferences" is used) to as high as 64%.

Actually, support for race preferences often garners less, sometimes much less, than 38% support. As I pointed out here, a 2007 Pew survey found that only 34% of respondents agreed with the statement: “We should make every possible effort to improve the position of blacks and other minorities, even if means giving them preferential treatment.” Moreover, only 42% of Democrats agreed (compared with 17% of Republicans). (Incidentally, as I noted, Pew’s summary of its findings left out these inconvenient facts, noting instead public support for “affirmative action.”)

And Gallup itself has found strikingly low support for race preference policies, as shown in this list of results published in USA Today. For example, a June 2003 Gallup poll asked the following question:

Which comes closer to your view about evaluating students for admission into a college or university – applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted (or) an applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?

69% said merit only; 27% thought race “should be considered.”

When asked, “Do you think that businesses should or should not be allowed to consider race as a factor in making hiring decisions?” 87% said no; 11% said yes.

And let’s not forget that, despite forceful and highly funded opposition from virtually united elite opinion centers, substantial majorities in the blue states of California, Washington, and Michigan voted to prohibit preferential treatment based on race, ethnicity, or gender. Indeed, the gap between elite and non-elite opinion on race preferences may well be larger than the gaps Barone mentions on guns and climate.

Finally, I think the gulf between non-elite and elite opinions of both gun control and racial preferences reflects something more than simple disagreements over those policies. Most Americans believe that the 2nd Amendment’s protection of the right to own and bear arms recognizes their right to, well, own and bear arms, subject only to reasonable regulation (much as the right to free speech is subject to reasonable time, place, and manner regulation), even if they have no interest in actually exercising that right. They believe, in short, that the Constitution’s text imposes a real and binding restraint on government policy and, perhaps even more fundamentally, that the meaning of that text is clear enough to general readers.

Elite opinion, by contrast, dismisses this notion as naive literalism. Back in 2004, in Interpretation: Reading Literally vs. Construing Liberally, I argued that a then-recent article by Jeffrey Rosen was “a useful reminder ... that one of the most significant differences between liberals and conservatives these days [and, I would add now, between elite and non-elite opinion] is a, or rather, the, matter of interpretation.”

In passing, Rosen defines strict constructionists as "those who believe the Constitution should be read literally," which makes me wonder: what do lax (permissive?) constructionists believe -- that the Constitution should be read figuratively? What they believe, I believe, as I pointed out with some heat if not light here, here, here, here, and, recently, here, is that legal texts should not really be read at all; they should be construed, and construed liberally.

Similarly, with regard to race preferences, as we saw above a substantial majority of Americans continues to believe, rather deeply, in the traditional value that Gunnar Myrdal called “the American Creed”: the principle that every citizen has a fundamental right to be treated “without regard” to race, creed, or color. Elite opinion, by contrast, has abandoned that principle; it has been preaching for a generation that benefits and burdens should be distributed on a “race conscious” basis, with “race conscious,” like “affirmative action,” being a euphemism for racial preference. According to survey data, however, that preaching has been successful only with the small choir made up of elites in academia, board rooms, editorial offices, and elected Democrats. It has come nowhere close to converting the congregation of non-elite citizens.

Elite opinion, in short, is not simply “out of touch” with non-elite public opinion. It is affirmatively antagonistic to it (remember “bitter,” “clinging”?), and to the traditional values and interpretive methods on which that opinion is based.

Posted by John Rosenberg at 3:41 PM | Permalink | Say What? (2) | TrackBacks (0)

Donald A. Downs, a professor of many things at the University of Wisconsin (politics, law, journalism), makes a good argument for diversity in the Chronicle of Higher Education.

Some of you will have noticed that here I’m not putting “diversity” in quotes (though I just did, to mark the word). That’s because the particular form of diversity that Prof. Downs calls for — bringing ROTC back to elite campuses — is real, not superficial and simply skin deep. Universities and the military, he writes, “embrace different cultures, procedures, and purposes,” and thus a “military presence can contribute to the intellectual and moral diversity on the campus.”

The military mind contrasts sharply with the conventional wisdom and assumptions of most of today's college students. In his classic 1957 book, The Soldier and the State, Samuel P. Huntington portrayed the "military mind" as predicated on "conservative realism." At that time, conservative realism was not a partisan concept, because military leadership strove to be nonpartisan, and the partisanship that did exist was fairly evenly distributed between Republicans and Democrats. (Today military leaders are much more likely to be Republicans than in the past — yet another sign of the broader gap between the military and universities.) According to Huntington, the military mind believes that the nation-state is necessary to deal with the darker aspects of human nature and political communities: "Man has elements of goodness, strength, and reason, but he is also evil, weak, and irrational. The man of the military ethic is essentially the man of Hobbes."

That logic is an alternative to the progressivism that dominates many campuses today, and to the plethora of programs dedicated to world and global citizenship as opposed to national citizenship. Liberal education requires exposing students to the fullest array of worldviews, including the military mind and conservative realism.

Then there is the matter of lifestyle. ROTC students must act according to special codes of discipline and conduct. They are often required to wake up before dawn, and although they seek out fun, my interviews with cadets reveal that they tend to define themselves primarily in terms of duty to their country. Patriotic nonmilitary students are typically more committed to self-advancement and individual rights. ROTC students, by contrast, provide a concrete example of a duty-based outlook.

“Challenging the basic assumptions of any institution — be it a country or a college — ,” Prof. Downs concludes, “is itself a way to improve that institution.”

Thus, although there are good public policy reasons for expanding ROTC — “In 2006 the Army ROTC came up 450 officers short of achieving its national goal for commissions,” Prof. Downs bases his argument on what he sees as the much needed diversity a military presence on campuses would bring to the campuses themselves. “ROTC and military-strategic studies,” he argues, “enhance the civic and liberal education of nonmilitary students.”

This argument, as DISCRIMINATIONS readers well know, is identical to the justification for the preferential treatment extended to preferred minorities in order to promote pigmentary “diversity”: the presence on campus of students who are “different” because they come from “different” cultures (color, in this view, is a badge of culture) is necessary to the education of the privileged whites who are thereby exposed to them. (See, for three of many examples, “Diversity” As Exploitation, “Diversity” As Exploitation II, and “Diversity” Is As Diversity Does(n’t).)

There is another similarity between the diversity rationale for a military presence on campuses and the diversity rationale for “underrepresented” minorities: both of those groups have been (minorities) or are (the military) stigmatized and even despised. For example, as Prof. Downs notes,

The executive committee of the Student Senate of the Union Theological Seminary at Columbia declared that it opposed ROTC’s return to campus because of “the violence of militarism. ... Some of us are pacifists, and others of us simply reject the U.S. military in its current manifestation.” Students and faculty members have characterized the struggle at Columbia as a clash between two cultures and mentalities....

Although the situation is more complex than many critics and apologists maintain, it is nonetheless clear that a wide gap divides the military and many major institutions of higher education. As David Gelernter, a professor of computer science at Yale, noted in Kathy Roth-Douquet’s and Frank Schaeffer’s book, AWOL: The Unexcused Absence of America’s Upper Classes From the Military — and How It Hurts Our Country (Collins, 2006), “Here in academia, my colleagues seem determined to turn American soldiers into an out-of-sight, out-of-mind servant class who are expected to do their duty and keep their mouths shut.”

If universities actually believed their diversity mantra, they would not only welcome ROTC on campus; they would beat the bushes for military-minded applicants and offer them preferential admissions, scholarships, and an array of classes in military studies. Of course, if they really believed what they say about diversity, they wouldn’t limit their current diversity efforts to skin color.

Posted by John Rosenberg at 9:16 AM | Permalink | Say What? (0) | TrackBacks (0)

I’m a little late to the party of looking at Judge Sonia Sotomayer, who seems to be on everyone’s short list as a possible replacement for Justice Souter. But, better late than never.

Actually after the reporting of Verum Serum, who unearthed the original article in the Berkeley La Raza Law Journal (S. Sotomayor, “A Latina Judge’s Voice, Vol. 87 [2002]) that others had mentioned and provided extensive quotes from it, there’s not much left to say.

Judge Sotomayor had apparently been on a panel with others, including Judge Mirian Goldman Cedarbaum, a senior judge on the United States District Court for the Southern District of New York, with whom she disagreed on a fundamental and revealing issue, as quoted on Verum Serum:

While recognizing the potential effect of individual experiences on perception, Judge [Miriam] Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society....

I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that - it’s an aspiration because it denies the fact that we are by our experiences making different choices than others....

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life. [Emphasis added by Verum Serum]

Perhaps some future interrogator can ask Judge Sotomayor to explain what she means by “inherent physiological or cultural differences,” and why she's not bothered by these racialist notions. In any event, if a cultural difference were somehow “inherent,” wouldn’t that make it physiological and not cultural at all?

Judge Sotomayor claims to “agree with and attempt to work toward Judge Cedarbaums’s aspiration” toward neutrality and objectivity. I wonder what she would say if she disagreed with it?

UPDATE

Jeff Jacoby reminds us today that

JUDICIAL dispassion — the ability to decide cases without being influenced by personal feelings or political preferences — is indispensable to the rule of law. So indispensable, in fact, that the one-sentence judicial oath required of every federal judge and justice contains no fewer than three expressions of it: “I . . . do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States, so help me God.”

Since Judge Sotomayor pays so much attention to color and ethnicity (and no doubt thinks everyone else does, too), and sees nothing wrong with doing so, can anyone believe a Justice Sotomayor would carry out her duties “impartially”?

Posted by John Rosenberg at 8:31 AM | Permalink | Say What? (0) | TrackBacks (0)

Governor Moonbeam is back, reincarnated as California’s Attorney General.

“During two terms as Governor of California and two failed bids for the presidency,” Time Magazine wrote back in 1989, at the beginning of his political rebirth,

Jerry Brown, to some, symbolized visionary political leadership. To others, unmoved by his fascination with Buckminster Fuller’s visions of the future and the small-is-beautiful theories of E.F. Schumacher, Brown was a weirdo they called “Governor Moonbeam.” After losing a 1982 run for the Senate to San Diego Mayor Pete Wilson, he dropped out of politics and set off on the political equivalent of a penitent’s sojourn in the desert. He went to Mexico to learn Spanish, studied Zen meditation in Japan and worked with Mother Teresa in Calcutta. “I had such a negative reputation that every time I stood up someone would call me Moonbeam,” Brown explains.

As I hope this recent post made clear, everyone should start calling him Moonbeam once again. That’s because, as I discussed briefly there, he’s trying to persuade the California Supreme Court that the provision of California’s Constitution (enacted by the Prop. 209 initiative) prohibiting discrimination against, or preferential treatment of, any individual or group based on race, ethnicity, or sex violates the Equal Protection Clause of the 14th Amendment, and thus that, as I put it in my previous post, the Ninth Circuit (yes, the Ninth Circuit) was wrong when it “all but laughed [that argument] out of court” in 1997 and that the California Supreme Court was mistaken when it unanimously rejected that argument in 2000.

I return here to Governor, now Attorney General, Moonbeam because Sharon Browne, an attorney with the Pacific Legal Foundation, has submitted a letter brief to the California Supreme Court demolishing Brown’a argument. It was once believed, or at least said that the moon is made of green cheese, but Ms. Browne has blown so many holes in AG Moonbeam’s argument that what’s left of it makes the holiest Swiss cheese look solid by comparison.

At least AG Moonbeam does not attempt to make up a new argument out of whole cloth. On the contrary, he simply repeats an argument that has been rejected by every appellate court that has heard it — the two mentioned above, plus this one where, in upholding Michigan’s Prop. 2, the Sixth Circuit said that “In the end, a law eliminating presumptively invalid racial classifications is not itself a presumptively invalid racial classification.”

AG Moonbean attempts to balance the stool of his argument on two legs, one wobbly and far too short and the other too thin to support any weight at all. The too–short wobbly one is known to lawyers as the Hunter/Seattle doctrine, based on two Supreme Court cases: a 1969 case (Hunter) where the Court struck down an Akron, Ohio, charter amendment that took away from the city council the power to pass ordinances against housing discrimination without first getting majority approval of Akron voters; and a 1982 case (Seattle) the Court invalidated a state initiative that barred school boards from assigning students beyond their neighborhood schools. Both measures, the Court reasoned, involved racial classifications that prevented minority voters from addressing racial problems.

Browne makes mincemeat (if, abandoning cheese, I can mix my food metaphors) of this argument, quoting the courts that have rejected it. “The laws in Hunter and Seattle were struck down under the Equal Protection clause,” she writes,

because they created explicit racial classifications and expressly altered the political decision-making process in ways that facilitated racial discrimination on the part of citizen-voters. In contrast, Secition 31 [of the California Constitution] is a racially neutral policy measure that prohibits government racial classification and discrimination, and leaves the political decision-making process untouched....

The other leg of AG Moonbeam’s two-legged stool, the one that is too thin to support any weight at all, is his argument that the California Constitution may not prohibit any policy that the Federal Constitution allows. This argument is like a rampant weed: after being killed in one place it keeps sprouting up in others. It misses, in every iteration a fundamental fact not altered by continually attempting to deny it — that the Federal Constitution does not require what it merely allows. As Browne writes, the Attorney General’s position

reflects a presumption that the California Constitution cannot prohibit race- or sex-based discrimination that would be permissible under the Fourteenth Amendment. To the contrary, this Court has consistently held that the Federal Constitution provides a floor, not a ceiling, to the protection of individual rights under the California Constitution. Consequently, the Attorney General’s repeated concern that Section 31’s ban on racial and sexual discrimination is broader than the protections afforded by the Fourteenth Amendment is irrelevant to this Court’s deliberations.

Indeed, the California Constitution even expressly declares (Article I, §24) that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”

AG Moonbeam’s argument that prohibiting racial favoritism is racially discriminatory is so farfetched, Hunter and Seattle notwithstanding, that it is rather like trying to disprove some universally accepted mathematical axioms, such as, for example, “Two things equal to the same thing are equal to each other” and “If equals are added to equals, the sums are equal.” Sharon Browne’s reply brief, in turn, is so powerful that she has done something truly remarkable: she has actually proven an axiom, the Constitutional truth that colorblindness and racial neutrality cannot equal racial discrimination.

Posted by John Rosenberg at 11:32 PM | Permalink | Say What? (0) | TrackBacks (0)

[NOTE: An ADDENDUM was added to this post at 7:55AM Today]

Another controversy over testing has broken out in New England. (For the mother of all testing controversies, recently argued in the Supreme Court, see here, here, here, here, and here.)

Governor Deval Patrick, who once headed the Civil Rights Division of the US Justice Department, plans to appeal a federal court ruling that allows minority police officers to pursue a civil rights lawsuit challenging the state's promotional exam....

At issue is a multiple-choice promotional exam prepared by the state Human Resources Division and used by about 200 police departments across the state, said Liss-Riordan. The 44 plaintiffs are patrol officers who took the exam since 2005 but have not received promotions....

Now, the fact that Deval Patrick is opposing a complaint against discriminatory testing brought by minority policemen is interesting enough. After all, this is the same Deval Patrick who, according to Jeffrey Rosen writing in the generally liberal New Republic (and quoted by me here),

committed the Clinton administration to a vision of racial preference that fulfills the most extravagant fantasies of a conservative attack ad. (“You lost that job because you were white....”) Rather than honestly confronting the costs of affirmative action, Patrick has blithely endorsed the most extreme form of racialism.

But what I find even more interesting, and disturbing, than Patrick’s odd trajectory is the argument made by the plaintiffs here in their own behalf:

The officers say that the exam, which relies heavily on rote memorization of facts about law enforcement, discriminates against members of minority groups and has prevented advancement within the ranks. As a result, they said, supervisors in departments do not reflect the diversity of their communities.

I obviously know nothing about this test. I don’t know whether it does in fact “rel[y] heavily on rote memorization of facts about law enforcement” or, if it does, whether that’s good, bad, or indifferent. I have no idea whether it is useful in predicting job performance. But why on earth would a minority policeman want to stand up in court and assert that a test that requires memorization discriminates against him ... and everyone who looks like him?

Is there any evidence that minorities are memory impaired? Let’s assume this test was not a good one to determine police promotions. Would these plaintiffs and their lawyers agree that blacks and Hispanics are, in general, less likely to be qualified for jobs that do require memorization than members of other racial and ethnic groups?

If not multiple choice questions, then what?

Frank Landy, a specialist from New York on civil service tests who plans to testify for the plaintiffs in the upcoming trial, said in an interview yesterday that no one knows for sure why minorities do not perform as well as whites on such multiple-choice exams. But other states have developed exams that are not discriminatory and better gauge the best candidates for promotion, he said. Those exams feature multiple-choice personality tests, oral boards, and role playing, among other components.

What specialist Landy means by “discriminatory,” of course, is any test that does not result in racially proportional pass rates. But leave that aside for now. If you had a choice, would you rather be protected by a police force whose members have high memorization skills or who do well on “multiple-choice personality tests, oral boards, and role playing”?

ADDENDUM [Added 7:55AM]

Turns out I made much the same point about the pathos of assuming that blacks can’t pass tests in discussing the recent Ricci case, here, after quoting Justice Ruth Bader Ginsburg’s comment that

historically, fire departments have been the preserve of white men, something they maintained through discrimination. She likened the city's decision to junk the test for another exam to changes made by public-safety departments in physical-strength requirements to accommodate women applicants.

“In Justice Ginsburg’s world,” I pointed out,

just as women are at a physical disadvantage in competing with men, blacks are at a mental disadvantage in competing with whites, Asians, and in this case Hispanics.... This is truly pathetic. With friends like this, who needs enemies?

Posted by John Rosenberg at 12:35 AM | Permalink | Say What? (0) | TrackBacks (0)

[NOTE: This post has been UPDATED]

Two days ago Fox News reported a growing controversy over an un-diverse “diversity” committee at the Federal Communications Commission (HatTip to InstaPundit).

A diversity committee at the Federal Communications Commission is raising the hackles of conservative watchdogs who say its ideological makeup is hardly diverse.

The FCC recently renewed the charter of its 31-member Advisory Committee on Diversity for Communications in the Digital Age, which is set to convene in Washington Thursday.

The committee’s mission is to help “enhance the ability of minorities and women to participate in telecommunications and related industries,” according to the FCC. In past years the committee has suggested remedies like changing the tax code to help minorities purchase radio and television stations.

But conservatives say the committee is one-sided and made up primarily of liberal activists who have something more than diversity in mind.

That “something more,” conservative critics charge, is “a back-door campaign to revive the so-called Fairness Doctrine, which mandated equal time for opposing viewpoints during radio and television broadcasts, and whose demise in 1987 led to the explosion of conservative radio networks and programming.”

Are opposing viewpoints — about “diversity,” about the fairness doctrine — equally represented on the FCC’s “diversity” committee?

More troubling than the makeup of this committee, in my view, is what a Democrat-dominated FCC determined to produce more “diversity” will actually do. As an article yesterday in the Wall Street Journal noted:

The president himself is on record as opposing the Fairness Doctrine but favoring media ownership caps and “opening up the airwaves . . . to as many diverse viewpoints as possible.” In February, Michael Copps, a Democrat currently serving as acting chairman of the FCC, echoed Mr. Obama when he told CNSNews.com: “If markets cannot produce what society really cares about, like a media that reflects the true diversity and spirit of our country, then government has a legitimate role to play.”

And what role might that be and how would it actually be played? The Fox News article quoted above gives one example: “In past years the [“diversity”] committee has suggested remedies like changing the tax code to help minorities purchase radio and television stations.”

Having one’s taxes determined by race is a pretty drastic step. Perhaps the FCC can have the IRS issue racial identity cards to make the process easier.

At least the president gave lip service to “diverse viewpoints,” but when Chairman Copps threatens (promises?) to have the FCC produce the “true diversity” that market will not, does anyone think he means “diversity” of anything over pigmentation? Of course, if Chairman Copps, the cop of the airwaves, really believes in the racialist essentialism underlying the “diversity” mantra — that minorities, especially, blacks are “different” in essential and important ways — then he may well believe that pigmentation is a valid proxy for viewpoint.

UPDATE [8 May]

Yesterday I discussed (here) the un-diverse “diversity” committee at the FCC and the unbalanced argument for “balance” that is at the heart of the demand to re-instate the “Fairness Doctrine,” or something equally unfair.

As usual, Roger Clegg has something worthwhile to say on this matter, quoting the hapless Sen. Dick Durbin (D, Dunce) who sponsored a Senate amendment to promote diversity in media ownership and pointed out, presumably to his less astute colleagues, that “[w]hen we talk about diversity in media ownership, it relates primarily to gender, race, and other characteristics of that nature.”

And what might those “other characteristics of that nature” be? If we’re going to give preferences, tax breaks, etc., to people who have them we should at least know what they are.

While I’m here, let me mention one other thing, highlighted in the Wall Street Journal I quoted above, that I neglected to discuss yesterday. If the Democrats are not able to impose “fairness,” i.e., silencing conservative talk radio, directly through a “fairness doctrine,” they may be far more effective in doing so through the creation of “local advisory boards.”

The real threat to talk radio comes from regulators and activists who favor government control of broadcast content by other means. Most notable of these is the proposed “localism” policy now wending its way through the FCC rule-making process.... Once the panels were established, the FCC could dramatically boost their influence by giving them a role in the license-renewal process.... [E]ven if the advisory boards didn’t have that kind of power, they would still be problematic. Radio stations succeed by identifying a segment of the audience and super-serving it around the clock. Are they supposed to alter programming to serve other segments of the community? How would that affect their business? What if a Christian station’s advisory board decides that its programming should be more “inclusive”?

Of course, if through either the Fairness Doctrine or these local advisory boards the FCC can, say, force a local radio station serving up a red meat diet heavy with Rush Limbaugh, Sean Hannity, etc., to provide “balance” by dropping some of that red meat and adding some tofu imported from MSNBC or other affiliates of the Democrats, it would also tell a black-owned radio station serving a black inner city audience that it needs to be more “inclusive” or lose its license.

That would be fun to watch.

Posted by John Rosenberg at 8:20 AM | Permalink | Say What? (0) | TrackBacks (0)

The lede from an article today in USA Today:

WASHINGTON — Although President Obama has vowed that citizens will be able to track “every dime” of the $787 billion stimulus bill, a government website dedicated to the spending won’t have details on contracts and grants until October and may not be complete until next spring — halfway through the program, administration officials said.

But no matter. It’s only money, and not even his.

Posted by John Rosenberg at 9:02 PM | Permalink | Say What? (1) | TrackBacks (0)

In July 2007 candidate Obama clearly announced what his standard would be for nominating judges:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

Now comes prolific University of Chicago law professor Richard Epstein with a powerful critique of the empathy criterion in judicial selection and a defense of the traditional notion that justice should be blind.

It might be smart politics for Obama to play to his natural constituencies, but intellectually there is, I think, no worse way to go about the selection process. Empathy matters in running business, charities and churches. But judges perform different functions. They interpret laws and resolve disputes. Rather than targeting his favorite groups, Obama should follow the most time-honored image of justice: the blind goddess, Iustitia, carrying the scales of justice.

Iustitia is not blind to the general principles of human nature. Rather her conception of blindness follows Aristotle's articulation of corrective justice in his Nicomachean ethics. In looking at a dispute between an injurer and an injured party, or between a creditor and debtor, the judge ignores personal features of the litigant that bear no relationship to the merits of the case.

“Lest one think that this form of blindness has no constitutional resonance,” Epstein continues,

remember that the single most powerful image used to combat segregation in the United States was the first Justice John Marshall Harlan's plea for “a color-bind” constitution in his dissent to the Court's notorious 1896 decision in Plessy v. Ferguson, which in one case legitimated bans against interracial marriage and segregated schools and public transportation systems.

I have argued here on a number of occasions that one of the oddest, saddest things about contemporary liberalism is the degree to which it stands on the shoulders, and repeats the arguments, of dead racists. And the best example, as I noted here, is that

anyone who defends racial preferences must reject Justice John Marshall Harlan's stirring comment in Plessy that “our Constitution is colorblind” and agree with the majority's holding in that case the 14th Amendment does not require colorblindness.

That’s because, as I noted here, that

the legal theory underlying the Plessy decision is that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. The preferentialist argument today is an unwitting echo of Plessy.

Modern liberals, alas, do more than reject Justice John Marshall Harlan’s invocation of colorblindness when they echo the Plessy majority’s defense of discrimination. They also align themselves (malign themselves might be more accurate) with the framers of the 14th Amendment who successfully prevented Charles Sumner, Thaddeus Stevens and other former abolitionists from including a clear colorblind standard.

“It is one of the many ironies in the strange career of racial equality,” as I argued here, that

that in order to defend racial preferences liberals today rely on purposefully ambiguous language resulting from the desire of the framers of the 14th Amendment to preserve segregation and states rights, while the critics of racial preferences, who are usually viewed as conservatives, echo the radicals who wanted to proscribe all racial distinctions. Today ... these “conservatives” are much more likely than liberals to honor Justice John Marshall Harlan’s eloquent assertion in his Plessy v. Ferguson dissent that “our Constitution is colorblind.”

The ultimate irony, of course, will be when our first black president nominates a Supreme Court justice who agrees with the arguments of those who kept an unequivocal colorblind standard out of the 14th Amendment and with the majority in Plessy who argued that our Constitution is not colorblind.

Posted by John Rosenberg at 8:19 AM | Permalink | Say What? (1) | TrackBacks (0)

I was a guest today on Rob Schilling’s Charlottesville radio talk show today. Podcast can be found here.

I’ve written about Rob several times before, such as The Intolerance Of Virginia Bluebloods on March 6, 2006:

No, I don’t mean the bluebloods you’re probably thinking of — aristocrats or descendants of aristocrats or aristocrat wannabes. I mean the Democrats in solid Blue Charlottesville, who are increasingly demonstrating a level of intolerance that I find both extreme and yet typical of the breed.

Take the City Council, for example. (Or, in Henny Youngman style, “Take the City Council, please!”) There are five members. They were traditionally all Democrats until four years ago upstart Republican Rob Schilling, an import from Pasadena, California, pounded the pavement and got himself elected. He’s been a persistent and effective critic of the remaining four Democrats ever since, and they don’t like it.
In fact, according to an article in today’s Daily Progress, at least one of the Democrats, Blake Caravati, has so much trouble with criticism that he not only wants Schilling defeated for re-election — no surprise or problem there — but he doesn’t even like the idea of him walking around a free man with the same First Amendment rights as everyone else.

You’ll have to read the rest yourself to see why criminal charges were threatened. And then the next month, in Old Dominion Dems Decry Diversity!:

The Hook, a weekly newspaper in Charlottesville, has an article in the current issue leading up to the city council election next Tuesday whose dramatic headline asks: “Countdown: Can Dems Retake Council?”

I’m tempted to say that question is sooooo Charlottesville, but I’m afraid it’s rather typical of Dems these days (in Charlottesville, like many other places, “Democrat” and “journalist” and “editor” are synonyms.) What, you must be asking by now, bothers me about that headline? It’s this: “retake” suggests the Democrats, now in a minority, may be poised to regain a majority on the city council. Isn’t that what it suggests to you?

Wrong! The current make-up of the city council is 4 Democrats and 1 Republican. When that one Republican, Rob Schilling, a very bright and appealing transplant from southern California, was elected in 2002, he was the first Republican to be elected to the city commission in 16 years, and is still the only one. The Democrats have launched a frenzied attack to unseat him this year.

Thus, as The Hook’s odd and misleading headline neatly reveals, to Charlottesville Democrats “retake” means ousting the only Republican and returning to a council that is made up only of Democrats.

And finally, a week later in Charlottesville, The Capital Of Blue Virginia..., I reported the sad but predictable news that Rob had indeed been tossed off the city council:

Well, ... the Charlottesville Dems were successful on Tuesday in their effort to “retake” the City Council, ousting the only Republican to have served on it in the last 16 years and thus eradicating the one voice that provided the “diversity” that is so celebrated by those Dems when it doesn’t cost them anything.

Ironically, Republican Rob Schilling’s major accomplishment, bringing the Council’s 4 Democrats, kicking and screaming, finally to accede to his efforts to convert the school board from appointed to elective, may have done him in, since hotly contested campaigns for seats brought out many more Democratic voters in the city.

But, fortunately for his former constituents and the rest of us in central Virginia, Rob landed on his feet ... or more accurately, on his behind, sitting behind the a WINA microphone with his very popular talk show. He’s been dropped twice, and re-instated twice by popular demand. Take a look at his blog, especially this essence-of-Rob dump on Charlottesville Democrats yesterday.

I had a good time on Rob’s program today, and hope he and listeners did. He issued an invitation to anyone who disagreed with my take on race preferences to appear and debate with me on another day. I hope someone takes the bait.

Posted by John Rosenberg at 5:54 PM | Permalink | Say What? (1) | TrackBacks (0)

spec·ter n. 1. A ghostly apparition; a phantom. 2. A haunting or disturbing image or prospect: the terrible specter of nuclear war

Darlin’ Arlen gave a hilarious imitation of himself as Ponderous Senator on Meet The Press yesterday. When David Gregory asked him what kind of justice President Obama should pick to replace retiring Justice David Souter, Specter replied:

He should be looking for someone with a strong academic and professional background. It would be my hope that he would choose someone with diversity. Women are underrepresented on the court. We don't have an Hispanic. African-Americans are underrepresented....

Ann Althouse, pointing out that blacks are not “underrepresented” on the Court, asked, “Did Arlen Specter mean to say that Clarence Thomas doesn't count as a black person?”

Although it is entirely possible that Sen. Specter simply can’t count or has forgotten that Thomas is, you know, black, his call for the appointment of someone “with diversity” actually raises, even if unwittingly, an interesting question. How do you know if a nominee “has” diversity? Do all women, Hispanics, and blacks (except, maybe, Clarence Thomas) have it? Are there degrees of “diversity,” so that some have more of it than others? I wonder if Sen. Specter thinks President Obama would be more or less “diverse” if his mother had not been white.

Because he may well remain on the Judiciary Committee and thus be evaluating whomever is nominated, perhaps Sen. Specter (D/R/Whatever, Specter) will share with us how he proposes to determine whether a nominee comes “with” enough “diversity” to pass his muster.

Posted by John Rosenberg at 2:07 AM | Permalink | Say What? (1) | TrackBacks (0)

I’ve just read a fascinating, impressive article on the SAT by Charles Murray, who argues, perhaps surprisingly, that it should be abolished. Briefly, he argues for getting rid of the SAT because it’s “a red herring” with a bad (though wholly undeserved) reputation, and that nothing of value would be lost since the SAT II/Achievement tests are equally useful at predicting college grades.

I don’t want to discuss this argument now, but if you’re interested in the controversy over testing, especially the SAT, then you should definitely read the whole thing, and then take a look at some of the comments it inspired over the past few days on National Review Online’s Phi Beta Cons blog.

What I do want to note here is the editorial blurb at the top of Murray’s article:

The SAT got him into Harvard from a small Iowa town. But now, CHARLES MURRAY wants to abolish the test. It’s unnecessary and, worse, a negative force in American life.

Now recall the standard, almost boilerplate liberal criticism of Clarence Thomas: that as someone who “is where he is because of his race,” he is a selfish, ungrateful hypocrite for opposing affirmative action.

I’m waiting for some (even one) of the liberals who routinely denounce Clarence Thomas as a selfish, ungrateful hypocrite for opposing the affirmative action that was the foundation (they claim) of his success to denounce Charles Murray in similar terms for opposing the SAT, even though he benefited from it immensely himself.

I suspect I’ll be waiting a long time.

Posted by John Rosenberg at 1:57 AM | Permalink | Say What? (2) | TrackBacks (0)

Back in March I had a long post on a raging debate inside the Virginia State Bar over “diversity,” and I encourage you to read it (or better, re-read it) before reading below about the continuation of this controversy that appears in the April 2009 issue of Virginia Lawyer with a new round of “diversity” critiques and defenses.

One thing these letters, pro and con, demonstrate clearly is that “diversity,” whatever else it may be (and as you will have seen in my former post, the president of the VSB who wants to incorporate furthering “diversity” into the very mission of the organization can’t or won’t define it), it is definitely divisive. As Peter McCrary, a Manassas lawyer argued in the first letter of this new collection:

It’s that simple. Clearly, diversity is a controversial issue. The mandatory Virginia State Bar has no business promoting any side of an issue not directly related to its primary mission —certainly not one as controversial as diversity....

Other letters repeated and expanded upon the critiques in the first rounds of letter. Richmond lawyer John Lumpkins, for example, pleaded for a focus in individuals, not groups, and opposed “appointment of judges and bar leaders based upon their skin color, sex, and national origin.” Defending the “diversity” initiative, Falls Church lawyer David Bernhard’s letter was a model combination of airy, uncontroversial bromide — “Diversity enriches the bar. It does not detract from the profession” — with blatant falsehood:

Opponents of [t]his initiative attempt to define “diversity” as establishing quotas for the unqualified, which is not what promoting diversity is all about. By defining diversity in this manner, they attempt to win the debate in painting the diversity initiative as nothing more than an effort to victimize and take from the qualified and give to the unqualified.

I believe I’ve read all the criticisms of the Diversity Initiative that have been published in the Virginia Lawyer, and I don’t recall a single one of them either arguing or implying that the VSB’s “diversity” initiatives would “establish[] quotas for the unqualified” or were “nothing more than an effort to victimize and take away from the qualified and give to the unqualified.” Read them yourself and see if you can find any evidence supporting Bernhard’s baseless slander.

Let me remind you that the Virginia State Bar, as you will have now read (or re-read), is not a private, voluntary organization. It is organized as an agency of the Supreme Court of Virginia, and membership is mandatory for all Virginia lawyers. Any action it takes is thus state action, subject to the strictures of both the 14th Amendment and the Constitution of Virginia, one of whose articles provides in part (as I quoted in my previous post) that “the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex or national origin shall not be abridged....”

As I noted in March,

Among the VSB programs that would seem to be the most at risk is the Oliver Hill/Samuel Tucker Prelaw Institute, which appears to be racially exclusive.

With an ever-growing diverse population, the need for diversity in the legal profession has become even more important. Although a disproportionate number of minorities are affected by the criminal justice system, the membership of the bar is not proportionately comprised of minority members. In 2000, the VSB leadership recognized a need to increase the number of minority attorneys in the bar, and developed the Millennium Diversity Initiative (“MDI”), a private, non-profit organization, to develop programs to that end. In 2001, at the request of the MDI, the YLC [Young Lawyer Conference] implemented the Oliver Hill/Samuel Tucker Institute....

The Institute targets a diverse group of students. We seek to attract minority high school students who would not normally have access to or positive interactions with members of the Virginia State Bar.

These students seem to be “diverse” in the same way that the original Model T was available in any color you wanted ... so long as it was black.

Perhaps the most revealing letter in this new round of dispute comes from Yvette Ayala and Rasheeda Matthews, co-directors of the Oliver Hill/Samuel Tucker Prelaw Institute, which they attempt to defend from charges that it discriminates. It’s a pretty puny defense.

First, they acknowledge — indeed, point, apparently with pride — to the language quoted above that appears on the YLC website:

The Institute targets a diverse group of students. We seek to attract minority high school students who would not normally have access to or positive interactions with members of the Virginia State Bar.

But then they immediately add, as though in mitigation, “[i]n our online application there is no mention of race or ethnicity.”

All applications are reviewed on their merits and students are admitted as space is available....

We have partnered with area school districts to notify them of the availability of applications, and the districts then disseminate that information to the high schools. There is no mention that the program is limited to minority students, as all students are welcome to apply. In fact, our response to inquiries related to whether a non-minority student can apply is: “While the program is targeted towards minority students, we welcome and encourage all students who are interested in attending the program to apply.”

We do not request information on a student’s racial or ethnic background on the application, and we make no assumptions regarding such during the review of applications received. All fully completed applications are reviewed for acceptance into the program, as space permits.

There is no mention of whether any of the applicants are interviewed, but let’s leave that question aside. Co-Directors Yvette Ayala and Rasheeda Matthews admit that their promotional material clearly states that the Institute “seek[s] to attract minority high school students,” and that when asked “whether a non-minority student can apply,” they routinely reply that “the program is targeted towards minority students,” although they “welcome and encourage all students who are interested” to apply.

None of this refutes the critics’ assertion that this program, for all practical purposes, is racially exclusive. And the proof, if proof beyond the co-directors’ discussion of the program’s intent is needed, lies in just how accurately “targeted” toward minorities it is: In 2008, Ayala and Matthews write,

we admitted twenty-three students to the Oliver Hill/Samuel Tucker Prelaw Institute. Twenty-one students were able to attend the program. One was Russian and another was Hispanic.

Thus 21 of the 23 students who were admitted (and 19 of the 21 who attended) were black. Given all the emphasis on seeking and targeting minorities, it is no doubt true that most of the applicants were black, but that hardly mitigates the fact that the program is discriminatory in intent, design, and effect.

Posted by John Rosenberg at 2:55 PM | Permalink | Say What? (0) | TrackBacks (0)