September 14, 2005
Line Drawing on Affirmative Action
As expected, Judge Roberts is getting a grilling from Senators Kennedy, Biden and others on the Senate Judiciary Committee regarding affirmative action. Roberts views on this are pretty well known, he doesn’t like affirmative action. However, like all Senate hearings, this confirmation hearing is looking to the past to ask questions instead of asking questions about the future impacts of issues, as Professor Jeffrey Rosen suggested in this New York Times article (subscription required-sorry) which originally appeared on August 28 in the NY Times Magazine.
I am not sure what motivates Judge Roberts' opposition to affirmative action, but my motivation has always been about lines, that is where do we draw the lines defining the scope of affirmative action? The limits of affirmative action, whether they be temporal, racial, socio-economic or otherwise, have been the downfall of the policy.
No rational observer of history can deny that racial discrimination did not exist in this country. However, affirmative action was not the best program to address past inequities, merely the easiest. It was easy for the government to say, "We should cut people a break to make the playing field level," but the result of the policy was a counting game. Looking at a class of people and counting became the determination of affirmative action. Call it what you want, quotas, reparations, or fairness, but proportional representation became the goal and all other standards became secondary. Of course, affirmative action proponents would say, "the discrimination happened, you have admited as such and implicitly admit that some sort of correction was necessary." Indeed, but affirmative action means that when dealing with resources which are finite, a zero-sum game exists. In order for someone to get a break, someone must lose out, perpetuating some form of discrimination.
But any rational observer of history will note that we cannot go back and alter history, the plain fact of the matter is that affirmative action exists. Fine, but that returns us to the original problem--where do you draw the lines going forward? Let me offer a hypothetical. Student A and Student B both come from households that fall well below the poverty line. Both children live and went to school in districts that were poorly funded, received free lunches, received government subsidized health care and were in all respects equal in terms of academic preparation, i.e. identical 3.0 GPAs and 1200 SAT scores. These students worked hard to get where they are, ready for college
You should know where I am going. Student A is black and comes from inner city Atlanta, Student B is white and comes from rural southwest Georgia. If both applied to the University of Georgia, the black student has a much greater chance of getting in, a greater chance that can be statistically calculated, merely because of his race.
But this is an old problem. What Professor Rosen pointed out in his article is that technology and the changing demographic nature of the country are going to wreak havoc on contemporary notions of affirmative action as currently formulated.
If current demographic trends continue, over the next few decades the United States will become more diverse. The Census Bureau estimates that the number of non-Hispanic whites may shrink to less than half of the population before 2060 and that Hispanics will soon outnumber blacks. As intermarriage rates continue to rise, more and more Americans will consider themselves multiracial. This is a recipe for conflicts over affirmative action and public entitlements.
Multiracial students will present the greatest challenge for the country and the courts when it comes to affirmative action. Let us consider an extreme example. A multiracial child is born of parents in South Carolina. The white mother can trace her ancestry to slaveowners in plantation South Carolina. The black father can trace his ancestry to black slaves of the North Carolina tobacco country. The child is applying to colleges and is denied admission to her top choice schools for whatever reason. The child then says, because she is partially black, she is entitled to admission or at least reconsideration for admission under affirmative action. The question is, is she entitled to such treatment because she is 50% black?
What if we as a society say yes, the above mentioned child is entitled to affirmative action consideration? So here is another line question. If the above mentioned child qualifies for affirmative action treatment, where do we draw the line as far as mixed race children go. Does the child need to be 50% minority? 30%? 25%? What about technology that could prove minority genetic make-up despite the fact that the child looks predominantly white, or predominantly asian? Professor Rosen takes up the case:
As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a [professor] at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage. "I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,'" he said. '"The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.'"
Rosen and Amar then postulate a legislative reaction in a state that says the social understanding test is too speculative, so you have to have a genetic test and anyone with a drop of minority blood would be eligible for affirmative action treatment. As Rosen writes:
"It would recall the shameful history in times of slavery and Jim Crow," [Yale law professor Paul] Schuck told me, "in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites." Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. "I think as pressure on affirmative-action programs increases," he said, "affirmative-action programs will have to make refined judgments about eligibility."
If one drop of blood was sufficient to make a person a slave in Pre-Civil war America, allowing the same standard for qualification under affirmative action has not leveled the playing field, but made it more combative. The weapons of the combat will be based on which people can afford the most precise genetic tests. How, in a society that values equality of treatment under the law, do we justify such a concept? How, as a society of laws, will the legislatures and the courts deal with such line-drawing?
I have not even explored other issues such as the economic issues. How can we say that a black child born of rich, upper middle class parents is entitled special consideration as opposed to a poor white child from Appalchia? What about immigrants from Africa or Latin America that are clearly of a particular race, but, because they are first generation immigrants, have not been subject to the history of discrimination in this country?
These are the questions that should be asked of Judge Roberts, but won't be. Partly because Judge Roberts is smart enough to know that such issues will be coming up in the court system, and partly because the Senate is notoriously bad about looking forward, we won't get answers. But at least if the question were asked in such a public forum, the real debate can begin in America about what are the appropriate lines to draw in affirmative action or even if we still need affirmative action.
Posted by Matt Johnston at September 14, 2005 01:20 PMYou have misrepresented Roberts on Affirmative Action. He believes AA is a good thing and has done great things for America. He opposes quotas and AA by numbers.
Roberts is no simple conservative, and conservatives might as well start cozying up to the fact that Roberts is not their poster boy for all that is conservative.
Posted by: David R. Remer at September 14, 2005 02:41 PMMatt,
Nice article and you pose some interesting questions.
If I may be so presumptuous as to try to answer your question about where to “draw the line,” I think that the answer becomes significantly easier to discern when you consider the fundamental dysfunction inherent in the argument about affirmative action.
In short, Congress has been trying to resolve a socioeconomic problem racially instead of socioeconomically. Thus, any success they have in accomplishing their objective is coincidental, at best.
They are trying to improve the opportunities of poor racial minorities by concentrating on the latter criteria rather than the former. And, in order to justify this racial criterion, they use the simplistic and fallacious rationale that the two wrongs of historical and contemporary racial discrimination make a right.
Interestingly, when Justice Lewis Powell upheld affirmative action in the Bakke case, he was forced to base his decision upon a principle espoused in a particularly odious Supreme Court decision, Korematsu v. United States. In this case, the Court affirmed the constitutionality of excluding Japanese Americans from the western coast of the United States and incarcerating them in concentration camps. In fact, Powell quoted approvingly from this decision, one that (as Justice Frank Murphy wrote in his dissent from Korematsu) “goes over the ‘very brink of constitutional power’ and falls into the ugly abyss of racism,” when he agreed with the Court’s opinion in Korematsu that,
“[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional.”
It seems obvious to me, and to a vast majority of Americans that it is well past the time that Korematsu should be overturned. All racial considerations must be unconstitutional if our nation is to become truly color-blind.
But Congress cannot ignore the vast disparities in wealth and the vast inequalities to achieve socioeconomic success (or, as Jefferson phrased it, “the pursuit of happiness”) that exist in our society today. Hence, it must enact a vigorous and effective affirmative action program that is based upon socioeconomic instead of racial criteria, thereby engendering a valid diversity within our society based upon economic class rather than a fallacious diversity based upon race.
In other words, to address the hypothetical example you described, both the poor black student and the poor white student should have an equal chance to attend college, and it should be significantly better than their rich or middle class counterparts.
Posted by: Chuck Hanrahan at September 14, 2005 02:43 PMNot being one to quote from Constitutional text (I don’t have the breadth of knowledge to intelligently quote it!), but rather from real life experience, I have observed the perpetuation of racism as a result of the quota systems that were/have been present since the 60’s. The very nature of quotas disenfranchises a group based on their color and thus perpetuates some of the anger that sparks racist attitudes. If you are white and lost an opportunity to someone because they were a person of color, it is difficult not to bear some animosity, especially if that position would make the difference between poverty and prosperity in your own life. Whether we like it or not, an individual will have the natural reaction that he/she is being treated unfairly based on the color or non-color of their skin and thus subject to the very discrimination we are trying to abolish.
While I do agree that oppression has and does still occur, granting someone special status based on their color is exactly the same as denying someone that same status based on their color. It seems that it is time to take such a simplistic method out of play and replace it with something more along the lines of what Chuck and Matt are describing.
At the very least, we should demand that our lawmakers become more creative in their thinking….
Posted by: More?s at September 14, 2005 03:11 PMFor better or worse, Justice O’Connor probably hit the nail on the head when she opined for the majority in the Michigan case that Affirmative Action would in some form or fashion be around for about 25 more years. My children are bi-racial, and they have been given equal opportunity in everything (by society, not me) to-date. Charter schools, increasing educational attainment among minorities, and many other efforts are leveling the playing field for many more people today than in the past. But it takes a generation sometimes….
Posted by: Reno at September 14, 2005 03:59 PM“…nor to deny to any person within its jurisdiction the equal protection of the law.”
This is in the 14th Amendment. It means what it says. “..any person…”.
It does not say anyone is more equal.
Posted by: Chris Ford at September 14, 2005 04:06 PMAffirmative Action belies the fact that all men are created equal in that it mandates that some are more equal than others in order to achieve a racial, social and/or economic balance.
Anyone who has been in or part of an environment that is comprised of a group of individuals knows full well (in spite of what they may say here) that for years there have been “flags” in the hiring, admissions (or whatever it takes to cover attrition or add to the size of a group) procedures cautioning that :
[1] We need a woman
[2] We need a man
[3] We have to have an African American man
[4] We have to have an African American woman
[5] We have to have a handicapped person
[6] It has to be someone between 25 and 35
[7] Etc.
If you haven’t been there you have no idea what it is like in the “real world”. Sure you can respond with WHY that’s wrong, we need to CHANGE that, you can explain philosophically what that situation does to the system, etc. but, that is the way it is and it is not likely to change under the leadership of any political party.
Following the above rules is as punishing to the qualified person excluded in the interest of rewarding the generally less qualified minority.
Within Affirmative Action everybody is a minority.
Posted by: steve smith at September 14, 2005 04:36 PMAffirmative action is racial profiling. It sometimes works, but it is not the right thing to do. And often you get the wrong guy.
Barrack Obama. Consider his case. His mother was a white Kansan. His father was from Kenya. He was educated in Jakarta, Indonesia, and Hawaii. He continued his education at Occidental College, Los Angeles, Calif., and Columbia University, New York City; studied law at Harvard University.
Does he have anything at all in common with a descendent of American slaves except some of the color of his skin? When did he, or anyone in his family suffer discrimination in the U.S.? Yet if he is in competition with some poor whitish kid from the mountains of W. Virginia, who gets the leg up?
Affirmative Action is nothing more than a quota system and racial discrimination.
It is also very insulting to Blacks who DONOT want to get anywhere based on their race, but want to make it because they are the best person for the job. They say it’s telling them they’re to stupid to get the job, or anything else, without help from some program.
I know this from talking to Blacks who feel this way.
When I’m hiring for my company I don’t put eoe in the ad even though I am an equal oppertunity employeer. Any qualified person applying for a job with me has as much of a chance as the next person. I look for the most qualfied person regardless of race, sex, religion, creed. of any other thing that someone might want to holler discrimination over. Of 37 employees I have 15 Blacks, 16 Whites, 3 Hispanics, 1 Asian, and 2 that are mixed race. And this because I refuse to go by racial quotas. If I used the quota system I’d only have 3 or 4 nonwhite employees.
When our social or economic institutions evaluate someone’s accomplishments in order to grant them an opportunity to succeed (such as a job or admission to a college), I think they have to consider each candidate not on the basis of some kind of static and universal standard, but on a relative and flexible basis.
This is why basing affirmative action upon race or gender or age or ethnicity or religion is both morally wrong and socially counterproductive.
I think of it as a footrace. When you hire or admit, you must try to gauge each candidate’s “speed” by their relative positions on the track, which can be very misleading. It’s like looking a photograph of the runners. Unless each of them started from the same place and at the same time, their relative positions aren’t an indication of their speed, only of their postion. Even the slowest runner can appear to be the fleetest with a sufficient head start, and the fastest can appear to be the slowest.
This is why economic affirmative action makes so much sense. Like golf, it must consider each person’s “handicap” so that the playing field is leveled. (How about that? Not only another sports metaphor, but a mixed one at that!).
If America wants to keep its promise of equality of opportunity to each of us, it must evaluate each of us not on the basis of what we have achieved, but on the basis of how far we’ve come to achieve it. Race, gender, age, religion and ethnicity are not advantages or disadvantages, but poverty and affluence are.
Posted by: Chuck Hanrahan at September 14, 2005 07:00 PMI’m with Chuck - Affirmative Action for socioeconomic status. I do agree that the black middle class and up do not need it since they’ve pretty much attended well rounded (and majorly white) school systems and have the education background necessary to compete. One person that I knew in particular had an SAT score of 1540, got 700s and above in the SAT IIs, scored fives on 10 APs, and won state level awards. He got accepted into Harvard and he earned his place. He didn’t have to worry about paying for college; his family had the money. Why does he need affirmative action? Take away his race and he becomes the typical Ivy League white male.
It’s the poor that this country should be worried about at this point. They do not play on a level field which affirmative action tried to create. I don’t think quotas are the answer, especially since they don’t solve the problem (poverty).
And Jack, I would like to ask if Obama didn’t already have the credentials or pedigree necessary to get in to Harvard or Columbia. He was president of Harvard’s Law Review - and I sincerely doubt affirmative action got him there.
In any case, a disproportionate amount of poor are minorities. A rude awakening for some in this country who feel that blacks and hispanics get a free pass in life.
Posted by: anne at September 14, 2005 07:20 PMAnne & Chuck
I never said that Obama got in because of affirmative action. But his classification as “black” is just another example of the stupidity racial profiling.
Judging by some relative standards might work in some things, but I am not sure I want to have heart surgery done by some who would have been really qualified, but for his bad childhood. I would feel a little uncomfortable flying on a plane designed by the man who would have taken calculus if he had not been disadvantaged.
What does equality mean anyway? Family makes a big difference. Much more than money or staus. Asian immigrant families come to the U.S. with nothing. Their kids do so well in school that the PC police have reclassified them as white and privileged for affirmative action. In fact, there are clearly quotas that work against Asians. If we counted Asians as minorities, a place like UC-Berkeley would be mostly minority.
The thing that holds people down the most is their attitude. PC thinking encourages bad attitudes. It tells people that they can’t get ahead without special help. Tell that to the Jewish immigrants of 1900. Tell that to the Greeks of the 1950s or the Vietnamese of the 1970s. Or for that matter tell that to Jamaicans. They are “African American” but their incomes are higher than most people of white. Our country gives opportunity to those who take them. If you are not doing well in the U.S., look to yourself first and figure out what you are doing wrong.
As Matt mentioned, when all factors are essentially equal, Affirmative Action uses race as the deciding factor. As we saw in the University of Michigan case, race was given a substantial amount of “points” in determining who would be admitted to the university.
In other words, judging someone based on the color of their skin, instead of the quality of their character. Dr. Martin Luther King, Jr. must be rolling in his grave.
Recently in Texas, Latinos have become the “majority minority”, overtaking Caucasians as the new majority. Census trends indicate the Latino population will continue to grow, which will one day make them the “majority majority”, if you will. When this day comes, will my white minority children be entitled to special government entitlements, or will the color of their skin exempt them from entitlements? What if my white minority children married into a majority Latino family?
I will not argue that Affirmative Action was created with good intentions, and that the program has had its successes. But at this juncture, I agree with Matt: continuing with the current AA policy is only going to complicate the issue, and eventually lead to expensive genetic testing procedures and lengthy court decisions.
We need to take EOE and extend it beyond employers. Merit and personal accomplishment should be the deciding factors when choosing to hire/admit somebody into an organization.
Posted by: LimeTime at September 15, 2005 09:40 AMOur government is as lost as crusoe. There is no common sense in washington any more, most if not
all legislated government programs (some good some bad) fall prey to time. No matter how well intended
without common sense they begin to feed on themself
to the point of undoing whatever good they might have acomplished by enactment. Our DEAR representitves in washington are ALL about their
carreers and those who pay to keep them in office
and pleasing those organisations that pay the most
reguardless of the dammage they do to our country.
It started as a government of the people, for the
people and BY the people. Now it is a government
of the SPECIAL few for the all mighty dollar by
the highest bidder.
LimeTime said: “We need to take EOE and extend it beyond employers. Merit and personal accomplishment should be the deciding factors when choosing to hire/admit somebody into an organization.”
Add equal opportunity to succeed without discrimination to the last sentence and you sold me. Down here in Texas, there a dozens of ways discrimination remains in force and shapes the state’s communities and hold back equal opportunities to folks of color in the way of housing, jobs, and police enforcement. There in lies the issue at hand.
Posted by: David R. Remer at September 16, 2005 06:55 AMMatt, interesting article. I think everyone agrees that a quota system is not the way to go forward.
It is important to have a forum for addressing racial and other types of discrimination (age, gender, etc), so the EEOC is a good thing and should be fully funded, but quotas are bad. In fact, I’m pretty sure the government doesn’t use quotas at all.
Some people brought up universities. As private institution’s they can have any acceptance policy they want. But if assigning points to minorities really bugs you, write ‘em a letter. I’m sure you don’t want the federal government writing university admissions requirements.
Has anyone considered the fact that eternal affirmative action constitutes a case for “inferiority” among the beneficiaries? In the Michigan case, Justice O’Connor mentioned that affirmative action was supposed to be a temporary remedy. It has been two generations since affirmative action has been in place. When will it be eliminated? Under what standard? Racism is the code word for anything the beneficiaries don’t want to hear, including ending affirmative action. Affirmative action has become affirmative discrimination, particularly if you are a white male.
