Scott Gottlieb writes:
"In fact Jews and others could not walk through the door in
many areas prior to the Civil Rights Act of 1964. "
This is absolutely true. But the fact remains those places didn't let in Jews (or
other white ethnics) also didn't let in colored. But if you were colored, you were
barred not just from the places which didn't let in Jews, but from just about every
place that wasn't earmarked colored (and this was was de facto in the North and the
South). There are stories in the late 50s of Dorothy Dandridge, movie star, not being
allowed to stay at the Palmer House Hotel in Downtown Chicago because blacks were not
permitted.
I think it must be difficult for people who are not of color to appreciate the depth
of the exclusion from mainstream society that people of color were subject to before
the Civil Rights Era. And so therefore you get this belief that "we made it past the
discrimination" and thus if they (people of color) didn't it's because of some
character flaw, i.e., they were stupid, lazy, ignorant, etc.) Whereas, the story goes,
the white ethnics and Jews were smart and hardworking and thus they overcame
adversity.
This view is based upon an ignorance of history, which is not surprising since part of
the Jim Crowing of America is that white people were taught nothing about people of
color or their experiences until really just about the last decade or two - and so
they can only try to analogize it to the experiences of their great grandfathers who
were looked down upon because of their accent, or their religion.
Again, this is not to discount the discrimination that they face.d BUt the fact is, if
you were white, even if you were relegated to a lower social caste, you still had a
seat in the room, even if it was in the back row. (And generally by second or third
generation, your progeny could pass out into the mainstream.) Not so, if you were
nonwhite - the doors barred shut, with a padlock.
yb
*********************************************
Professor Yvette M. Barksdale
Associate Professor of Law
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737
(email:) [EMAIL PROTECTED]
*****************************************************
> ----------
> From: Stephen Gottlieb[SMTP:[EMAIL PROTECTED]
> Reply To: Discussion list for con law professors
> Sent: Monday, May 26, 2003 2:03 PM
> To: [EMAIL PROTECTED]
> Subject: Re: affirmative action,nepotism and intergenerational
> distribution of property
>
> One of my black friends quotes a comment often used by blacks in prior
> years referring to the depth of discrimination: "They won't even let
> Jews in." In fact Jews and others could not walk through the door in
> many areas prior to the Civil Rights Act of 1964. Segregation was not
> required by law but clearly existed, enforced by signs naming the
> immigrant groups that "need not apply" for a variety of jobs. But of
> course that still has repercussions as different occupations were
> occupied and are still protected by different ethnic groups.
>
> But Pamela Karlan's point, I take it, which sparked this thread, was
> not about the legitimacy of inheritance itself, and for reasons
> explored, I think her choice of example led up a lot of blind alleys.
> The point instead, is that all of these advantages lock in the effects
> of prior segregation and discrimination. The larger point is that the
> world uses may devices which seem "natural" to some but which have
> strong racial effects. That is a quite different claim than the straw
> man about the legitimacy of inheritance.
>
> Prof. Stephen E. Gottlieb
> Albany Law School
> 80 New Scotland Ave.
> Albany, NY 12208
> 518-445-2348
> FAX 518-472-5878
> e-mail: [EMAIL PROTECTED]
>
>
> >>> [EMAIL PROTECTED] 05/24/03 05:37PM >>>>
> Ann Althouse writes:
>
> "I think you are overlooking anti-Semitism when you assume the
> publishers of the Times had the benefits of race."
>
> Oh no. Im not overlooking anti-semitism. Its clear that jews were
> discriminated against on the basis of their religion, and ethnicity if
> you consider being Jewish an ethnicity as well as religion. In fact most
> groups in the society, except affluent, male WASPs experienced some form
> of discrimination, from Catholics, to Jews, to immigrants, to Southern
> Europeans and other non-Anglo Saxons to people of lower socioeconomic
> class. But no matter level of discrimination other groups faced, one
> thing was clear - they weren't colored. Thus, when the signs said NO
> COLORED ALLOWED, they were able to walk through the door. Once they got
> in, they had other battles to fight, but they were in.
>
> For example: See this quote from your post:
>
> "Word soon filtered back to Sulzberger by way of Mississippi senator
> Pat Harrison that Roosevelt was furious with the Times. "
>
> This would never have happened if Sulzberger had been black. (in fact
> - the whole Roosevelt incident have occurred because Sulzberger's
> editorials would never have received a wider audience, and Roosevelt
> wouldn't have cared what he wrote.)
>
> A Mississippi Senator could never have deigned to treat a person of
> color with any level of equality, much less tip them off . He would
> have been completely ostracized - nigra-loving was the cardinal sin in
> the South, and Mississippi was the worst of the South.
>
> The level of social segregation and degradation in the South for
> persons of color in the South was such that if you were a black persons,
> you had to cross the street if a white man approached you, unless he
> gave you permission to pass. (My father told me this from personal
> experience - he was born in 1917 in Georgia.) Violating these codes got
> you lynched (remember Emmett Till).
>
> And also, affirmative action is not an issue of "redistributing wealth"
> (that's really the reparations issue). What we are talking about here is
> simply equalizing opportunity for the descendants of those who never had
> it to pass on to their progeny (here - access to higher education - a
> ticket that is necessary to have any success in our current economy.)
>
> yb
>
> yb
>
>
> *********************************************
> Professor Yvette M. Barksdale
> Associate Professor of Law
> The John Marshall Law School
> 315 S. Plymouth Ct.
> Chicago, IL 60604
> (312) 427-2737
> (email:) [EMAIL PROTECTED]
> *****************************************************
>
>
> > ----------
> > From: Ann Althouse[SMTP:[EMAIL PROTECTED]
> > Reply To: Discussion list for con law professors
> > Sent: Saturday, May 24, 2003 2:12 PM
> > To: [EMAIL PROTECTED]
> > Subject: Re: affirmative action, nepotism and
> intergenerational distribution of property
> >
> > I think you are overlooking anti-Semitism when you assume the
> publishers of the Times had the benefits of race.. A good book on the
> subject is Tifft & Jones's "The Trust: The Private and Powerful Family
> Behind The New York Times." To enhance the Conlawprof-list-worthiness of
> this message, let me quote you a passage that interestingly enough has
> to do with Roosevelt's Court-packing plan as well as anti-Semitism,
> inherited wealth, and estate taxes:
> >
> >
> >
> > > "The Times endorsed Roosevelt for reelection in 1936, but a
> year later lashed out at the administration for its plan to pack the
> Supreme Court, printing fifty editorials on the subject. ... Word soon
> filtered back to Sulzberger by way of Mississippi senator Pat Harrison
> that Roosevelt was furious with the Times. The president knew that the
> trust did not have the millions needed to pay the inheritance tax. He
> assumed that the family would have to borrow heavily or that a big block>
> of its common stock would have to be sold, thus reducing the
> Sulzberger's stake to less than a majority--a prospect that pleased him.
> Instead, the trust got a massive cash infusion from the company, through
> the company's purchase of the trust's preferred st> ock. Effectively,
> Arthur [Krock] had found a legal way to use the corporation's money to
> pay the family's tax bill. And not a single share of voting stock was
> lost. 'It's a dirty Jewish trick,' Roosevelt had reportedly thundered to
> Har!
> rison, referring to Arthur's plan to pay Adolph's death taxes and
> still maintain control of the paper. 'When Iphigene [Ochs Sulzberger]
> dies, we will get [The New York Times].'" (page 171)
> >
> >
> >
> > Anyway, I won't engage over the larger issue of how much the
> government ought to redistribute wealth to compensate for historical
> wrongs, but I thought this information belonged in the analysis!
> >
> > Ann
> >
> > > From: "Barksdale, Yvette" <[EMAIL PROTECTED]>
> > > Reply-To: Discussion list for con law professors
> > > <[EMAIL PROTECTED]>
> > > Date: Sat, 24 May 2003 00:25:36 -0500
> > > To: [EMAIL PROTECTED]
> > > Subject: Re: affirmative action, nepotism and intergenerational
> distribution
> > > of property
> > >
> > > I'm not sure I get your point about my wanting the tax law to
> impede
> > > immigrants from acquiring wealth. I know I never said that.
> > >
> > > Let's say, for argument's sake, we assume the general legitimacy
> of a
> > > capitalist, market-based economic structure in which people
> acquire wealth,
> > > and dispose of it as they see fit, including giving it to their
> descendants.
> > > Question 1. does this economic structure, and its
> intergenerational
> > > distribution of capital, remain legitimate as against the claims
> of those
> > > whose forbears were, excluded, for centuries, from participating
> in that
> > > economic structure (whose forbears were, in fact, the capital that
> was
> > > bequeathed)? Question 2, Does it follow, as Glenn Reynolds
> argued, that
> > > such inherited wealth is somehow MORE legitimate than
> governmental
> > > assistance to the descendants of those excluded from such
> benefits.
> > >
> > > My problem is not that immigrants could acquire wealth. My problem
> isn't even
> > > that they could give it to their grandchildren. My problem is that
> people of
> > > color were locked out of this process, and so they had no such
> legacy to give
> > > to their grandchildren. (Note - these wealth transfers are not just
> financial
> > > capital, they are human capital as well - who and what daddy knows,
> not just
> > > what daddy can buy.)
> > > Yet, their grandchildren are expected to out-compete the
> grandchildren of
> > > those whose legacies were handed to them, on a playing field which
> is still
> > > biased, and this just to get the opportunity to be educated by
> their own
> > > state's university. And, moreover, any effort to even try to help
> people of
> > > color overcome this history, is under some strange contorted
> reasoning, the
> > > most egregious immorality, while inherting the fruits of the racist
> past is
> > > somehow beyond reproach.
> > >
> > >
> > > For example, Sulzberger, may have been deeply in debt, and he may
> have been a
> > > socially disadvantaged German-Jewish immigrant (particularly
> compared with say
> > > a Rockefeller scion). However, he had the two assets he needed to
> pony up to
> > > the bar and join the economy in a meaningful way. He was white and
> he was
> > > male. Without those two free passes - no NYT. The racist society
> would not
> > > have bought his paper ("what - read that darkie rag"), they would
> not have
> > > given him financing ("but he's a colored - we don't do business
> with them" ),
> > > and they would not have given his reporters entree into the halls
> of power
> > > (okay maybe if they were undercover butlers). Indeed, the only way>
> a "colored"
> > > Sulzberger would have gotten into the NYT is through the side
> entrance, while
> > > carrying a broom. And if, suppose, he persevered, through sheer
> force of
> > > will, and nevertheless managed to build the paper into a modium of
> success. A
> > > racist mob would probably have burned it down (literally in the!>
> > > South, figuratively in the North.)
> > >
> > > Take, for example, the black enterpreneurial class that burgeoned
> in the south
> > > after the civil war. Given half a chance they could have flourished
> -like
> > > Sulzberger. But they were lynched, and burnt out by the Klan, and
> what they
> > > had left was trampled under by Jim Crow. Of course, there were
> some rare
> > > people of color who through herculean efforts did manage to acquire
> some
> > > wealth even within their iron cage. There were, for example,
> successful
> > > black newspapers, supported by black readers, successful black
> insurance
> > > companies, insuring black policy holders, and millionaire Madame
> C. J. Walker
> > > and her hair care products for black women. There were also
> entertainers and
> > > some service workers (tailors, caterers, etc. )
> > >
> > > But these successes were few and far between. And since no black
> business had
> > > a chance of widespread acceptance by the racist white public, no
> black
> > > business could have approached the power and wealth of
> Sulzberger's NYT. And
> > > most blacks were laborers and service workers. (The author Zora
> Neale Hurston,
> > > for example, despite her brilliance, ended up as a maid).
> > >
> > > Okay, now we come to today. Sulzberger bequeathed his legacy to his
> progeny
> > > (as did the forbears of those same affluent, whites who typically
> aced
> > > standardized tests). Isn't it at all relevant that that legacy
> was, at least
> > > in part, the fruit of our nation's racist past?
> > >
> > > But okay, let's say we leave the Sulzbergers their legacy. Can't we
> at least
> > > try to help the progeny of those who were locked out of such a
> legacy.
> > > After all, we can help any other group who suffered economic loss,
> whether
> > > flood, fire, earthquake victims, employees of Enron who lost their
> 401ks from
> > > corporate fraud, contributors to the officeholder who want special
> regulatory
> > > relief. THey can all get help, and such help gets only rational
> basis review.
> > > Why are the victims of slavery and racism different? Why can't
> they get
> > > relief?
> > >
> > > Apparently, their problem is that the country finally decided to
> help them and
> > > outlaw the racism that imprisoned their forbears. Be careful what
> you wish
> > > for. Alas, the same "color" that was used to exclude their
> forefathers from
> > > participating in the economic life of the community, is the same
> color that
> > > identifies them as descendants of such forbears, and its the same
> color that
> > > apparently is being used to prevent them from receiving assistance
> for their
> > > harms.
> > >
> > > After all, if Thus, if we decide to help such descendants overcome
> the legacy
> > > of racial injustice that they inherited, then we are helping
> members of an
> > > identifiable racial group. And, say the anti-affirmative action
> chorus,
> > > that's immoral racial discrimination. Who knew that Brown's real
> legacy is
> > > that people of color are the only group who government can't help
> overcome
> > > economic loss. After all, every dollar (or law school seat) we
> give to a
> > > person of color, we take away from a more deserving white person..
> (We even
> > > hurt those white people who wouldn't even get the seat, who
> couldn't have
> > > gotten the seat, because a less deserving black person ended up
> with it.)
> > >
> > > But what about Sulzberger's progeny - weren't they helped because
> of their
> > > race (or more accurately, because of the race of their grandfather,>
> which
> > > turns out, suprise, to be their race). Wouldn't that equally be an
> immoral
> > > race-based distribution of capital? Those are simply private
> economic
> > > choices of market actors. Didn't you know - morality doesn't apply
> to those.
> > > What are you, a communist or something?
> > >
> > > yb ,
> > >
> > >
> > > *********************************************
> > > Professor Yvette M. Barksdale
> > > Associate Professor of Law>
> > > The John Marshall Law School
> > > 315 S. Plymouth Ct.
> > > Chicago, IL 60604
> > > (312) 427-2737
> > > (email:) [EMAIL PROTECTED]
> > > *****************************************************
> > >
> > >
> > >> ----------
> > >> From: Ann Althouse[SMTP:[EMAIL PROTECTED]
> > >> Reply To: Discussion list for con law professors
> > >> Sent: Friday, May 23, 2003 4:47 PM
> > >> To: [EMAIL PROTECTED]
> > >> Subject: Re: affirmative action, nepotism
> and
> > >> intergenerational distribution of property
> > >>
> > >> Adolph S. Ochs, the son of a German-Jewish immigrant, was deeply
> in debt
> > >> when he bought the newspaper at auction in 1896. His family made
> the
> > >> newspaper what it is. Are we supposed to see it as fundamentally
> unfair that
> > >> the tax law didn't vigorously impede them?
> > >>
> > >> Ann Althouse
> > >>
> > >>
> > >>> From: "Barksdale, Yvette" <[EMAIL PROTECTED]>
> > >>> Reply-To: Discussion list for con law professors
> > >>> <[EMAIL PROTECTED]>
> > >>> Date: Fri, 23 May 2003 15:57:33 -0500
> > >>> To: [EMAIL PROTECTED]
> > >>> Subject: Re: affirmative action, nepotism and intergenerational
> distribution
> > >>> of property
> > >>>
> > >>> Glenn Reynolds writes: (re Pam Karlan's reference to
> intergenerational
> > >>> nepotism within the Sulzberger family at the NYT)
> > >>>
> > >>> 1. It would be ironic, if nepotism were illegal, and we'd fought
> a civil
> > >>> war over it, followed by massive morally-charged protests and
> legislation>
> > >>> outlawing nepotism; and
> > >>>
> > >>> 2. It would be ironic, if people's right to pass their property
> on to
> > >>> their descendants were generally regarded as unfair and
> illegitimate.
> > >>>
> > >>> We actually didn't fight a civil war over race, we fought a
> civil war over >>> a
> > >>> 200 year history of slavery - which happened to be based upon
> race.
> > >>>
> > >>> What is so horrific about race discrimination in our society is
> not the
> > >>> simple
> > >>> fact that someone jas made a distinctions are based upon some an
> ordinarily
> > >>> irrelevant physiological characteristic (race, hair color or eye
> color,
> > >>> etc.),
> > >>> but that such discrimination perpetuates the racial caste system
> that was
> > >>> created in our society as a consequence of the racial basis for
> slavery
> > >>> (only
> > >>> blacks could be slaves - it was illegal for whites to be
> slaves).
> > >>>
> > >>> It is this caste system, and this caste system alone, and the
> cataclysmic
> > >>> harms that it imposed upon generations of people of color who
> were caught in
> > >>> its suffocating net, that is the cause of the social structure
> that we have
> > >>> today in which Sulzbergers own the NYT (which they can pass on to
> their
> > >>> offspring), while there is no black-owned mainstream market
> major
> > >>> metropolitan
> > >>> newspaper in the entire United States.
> > >>>
> > >>> So to say that somehow white people's "intergenerational transfer
> of wealth"
> > >>> which was earned in a period in which blacks were completely
> excluded from
> > >>> all
> > >>> but menial participation in the economic marketplace is no
> problem, while
> > >>> trying to give a break to the descendants of those excluded
> blacks is the
> > >>> worst form of immorality is to show an extraordinary
> insensitivity to or
> > >>> ignorance of our country's racial legacy.
> > >>>
> > >>> yb
> > >>>
> > >>>
> > >>>
> > >>>
> > >>>
> > >>>
> > >>>
> > >>>
> > >>>
> > >>> *********************************************
> > >>> Professor Yvette M. Barksdale
> > >>> Associate Professor of Law
> > >>> The John Marshall Law School
> > >>> 315 S. Plymouth Ct.
> > >>> Chicago, IL 60604
> > >>> (312) 427-2737
> > >>> (email:) [EMAIL PROTECTED]
> > >>> *****************************************************
> > >>>
> > >>>
> > >>>> ----------
> > >>>> From: Glenn Reynolds[SMTP:[EMAIL PROTECTED]
> > >>>> Reply To: Discussion list for con law professors
> > >>>> Sent: Friday, May 23, 2003 1:33 PM
> > >>>> To: > [EMAIL PROTECTED]
> > >>>> Subject: Re: Statistics
> > >>>>
> > >>>> Hmm. I don't really have a dog in this fight, but on reading
> Pam's
> > >>>> remarks below, I have two responses:
> > >>>>
> > >>>> 1. It would be ironic, if nepotism were illegal, and we'd
> fought a civil
> > >>>> war over it, followed by massive morally-charged protests and
> legislation
> > >>>> outlawing nepotism; and
> > >>>>
> > >>>> 2. It would be ironic, if people's right to pass their property
> on to
> > >>>> their descendants were generally regarded as unfair and
> illegitimate.
> > >>>>
> > >>>> On a more serious note, I think that the too-easy equivalence
> being posed
> > >>>> between racial discrimination and things like legacy preferences
> serves to
> > >>>> undermine the moral capital with which antidiscrimination law is
> vested.
> > >>>> If legacy preferences and nepotism are just as bad as deliberate
> race
> > >>>> discrimination, then it must follow that deliberate race
> discrimination is
> > >>>> now worse than legacy preferences and nepotism.
> > >>>>
> > >>>>
> > >>>>> On a paper whose chairman and publisher is Arthur Ochs
> Sulzberger, Jr.,
> > >>>>> doesn't it seem ironic to be arguing that we should get rid of
> > >>>>> affirmative action for reporters and have a definition of
> "merit" that
> > >>>>> excludes any consideration of background?
> > >>>>>
> > >>>>> Pam Karlan
> > >>>>
> > >>>> --
> > >>>>
> > >>>> Professor of Law
> > >>>> University of Tennessee
> > >>>> 1505 W. Cumberland Ave.
> > >>>> Knoxville, TN 37996-1810
> > >>>> 865.974.6744
> > >>>>
> > >>
> >
> >
>
