Mark Scarberry makes a powerful point. After all, Jews were subjected to genocide in Nazi Germany. That's about as bad as it gets.
Also, the Supreme Court has already rejected affirmative action as a remedy for past, societal discrimination. At what point is that argument off the table for proponents of affirmative action? (Note that the Court refused to permit the Intervenors time in oral argument.) I think it was Abraham Lincoln who said that once a decision becomes "well-settled" respect for the Court requires that people stop challenging it. If I understand the AALS amicus brief in the Michigan cases, one of the arguments raised there was the past, societal discrimination argument. Does that mean that the AALS thinks the Court's position on the point isn't well settled or that it doesn't matter if it is? Scott Mark Stephen Scarberry wrote: >Could I ask whether Yvette would limit affirmative action benefits to >descendants of people of color who were discriminated against in the >U.S., or would she include recent immigrants? Would she extend >affirmative action benefits to descendants of people of color who were >discriminated against where those descendants seem to be getting at >least a proportionate share of current benefits already (e.g., Asian >Americans who, at least in California, obtain a large share of the >seats in the best public universities without any affirmative action >benefit)? I have expressed support for affirmative action to deal with >racial disparities that threaten our social fabric, but Yvette's >justification seems based directly on past harm--so I'd like to know >whether she would limit the benefits of affirmative action accordingly. > >Mark Scarberry >Pepperdine > >Barksdale, Yvette wrote: > > >>Scott Gerber writes: >> " I remain uncomfortable with >>> attempts to justify discriminating against some people today to rectify >>> discrimination against others in the past. Discrimination is wrong. >>> It always has been, and it always will be. Nobody should do it, and >>> nobody should be subjected to it. " >>> >>This is a nice sound bite , but it is really divorced from reality. The >fact of the matter is that the victims of racial discrimination are >people of color, and any benefit that is given to them in response to >that victimization is something that otherwise would have gone to >someone who is not a person of color (otherwise there is no remedy, >right? if people are simply keeping what they already have.) >> >>Your argument, "you can't fight discrimination with discrimination" if >taken at face value, would mean that there cannot be any remedy for the >discrimination of the past, because this means shifting something, >whether it is university seats, or reparations or whatever, from people >who are not people of color to those who are. And if the remedy, >regardless of the intent behind it, or the justification for it, is >simply labelled discrimination, because people of color get something >because of their race, then you simply grandfather in the status quo, >no matter how unjust. >> >>At some point, unfortunately, this is a zero sum game, at least >initially (although in the end, all benefit from a more racially fair >society). Question - in this zero sum game, why is it more just to >lockbox the benefits that whites today continue to reap from their >forefathers past racist policies, than to provide some relief to the >descendants of the victims of those policies - simply because they >happen, not coincidentally, to be defined by race. >> >>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: Scott Gerber[SMTP:[EMAIL PROTECTED] >>> Reply To: Discussion list for con law professors >>> Sent: Sunday, May 25, 2003 5:01 PM >>> To: [EMAIL PROTECTED] >>> Subject: Re: affirmative action >>> >>> I'm not sure what to make of these last several posts. What they >>> suggest to me, though, is that many different groups have been >>> discriminated against during the course of American history, including, >>> today at least in academe, WASP males. I still believe that it's >>> unconstitutional for any group to be discriminated against: black, >>> white, male, female, straight, gay, etc. I remain uncomfortable with >>> attempts to justify discriminating against some people today to rectify >>> discrimination against others in the past. Discrimination is wrong. >>> It always has been, and it always will be. Nobody should do it, and >>> nobody should be subjected to it. We'll know soon what the Supreme >>> Court thinks about the issue. >>> >>> Scott Gerber >>> Law College >>> Ohio Northern University >>> >>> >>> Louise Weinberg wrote: >>> >>> >>> >Excuse this digression from Pam's point about the cogency of race. >But >>> her >>> >haunting story about Ochs brings to mind an even more notorious >feature >>> of >>> >Ochs' career. Although Ochs was Jewish, his record concerning the >>> >Holocaust has come in for a lot of criticism. Apparently the Times' >>> policy >>> >during the Holocaust is laid at his door, although of course he was >the >>> >publisher and not supposed to be involved in editorial matters. >>> Whatever >>> >the truth about his involvement, it was on his watch that the Times >>> >routinely downplayed or buried the stories coming out of Europe in the >>> >'30s, and, worse, in the early '40's (the period of wholesale gassings >>> and >>> >incinerations in death camps). Who can explain it? Perhaps Ochs >feared >>> >that exhibitions of concern for European Jewry would threaten the> >>> >then-precarious advances that had been made by Jews in America. >Perhaps >>> >Ochs simply fell in with the administration's view. Reportedly >>> Roosevelt >>> >felt Americans were necessarily so antisemitic that we would lose the >>> war >>> >if, in the public imagination, it were turned into a war "to save the >>> >Jews." Yet one remembers that Abraham Lincoln eventually found the >>> >courage, with the Emancipation Proclamation, to plant on the moral >high >>> >ground a very racist Union army. With this brilliant, if necessarily >>> >flawed, move, Lincoln bestowed on the Army an inestimable >>> >advantage. Turning the Civil War into a war of liberation, some >>> historians >>> >think, made all the difference to the fighting spirit of the Army, to >>> the >>> >morale of the North, and, not least, to Southern will to carry on the >>> fight. >>> >Louise >>> > >>> >At 03:18 PM 5/25/03, you wrote: >>> >>Now that the history of the New York Times has become a topic of >>> >>conversation, here's another interesting item to add to the mix, from >>> Lani >>> >>Guinier's Lift Every Voice 97-98 (1998), describing her going to a >>> meeting >>> >>at the Times during her confirmation battle: >>> >> >>> >> "Returning to The New York Times was emotionally taxing for >>> >> me. The meeting took place in a conference room dominated by a >picture >>> >> of Adolph Ochs. Ochs had been publisher of the Times until 1935, >the >>> >> person with whom my father must have met at Harvard [where Guinier's >>> >> father was one of two black students in the freshman class and was >not >>> >> allowed to live in the dormitories] when Ochs invited all the >Harvard >>> >> students who had been high school newspaper editors to come to New >York >>> >> if they ever wanted a newspaper job. My father had taken him up on >the >>> >> offer. However, my father was not allowed to meet with Mr. Ochs in >his >>> >> office because blacks were not allowed above a certain floor at the >>> >> Times. My father had nonetheless insisted and Ochs, to his credit, >>> >> remembered his pledge. He met my father in the hall outside his >office >>> >> and gave him a job as an elevator operator." >>> >> >>> >> I feel a bit strange about having started this thread about >the >>> >> New York Times, since it's a paper I like a lot and, having worked >for >>> >> another family-owned paper (the Washington Post), I actually think >>> >> there's much to be said for the sense of responsibility to the >>> community >>> >> both papers exhibit, a quality that may be tied to their being >owned by >>> >> people rather than conglomerates. (Not having kids myself, I don't >>> have >>> >> a strong feeling one way or another about how much capital people >ought >>> >> to be able to pass on to their progeny or whether the ability to >pass >>> >> stuff along is an essential cog in our economy. Having gone to the >92d >>> >> Street Y nursery school in the pre-Jack Grubman days, though, I can >say >>> >> there's something deeply disturbing about a society in which someone >>> will >>> >> pay $1 million [especially of other people's money] to get his kids >>> into >>> >> the right nursery school.) But the idea that the problem with >Jayson >>> >> Blair was an aberrant departure from strict ideas of merit in >pursuit >>> of >>> >> social engineering, rather than just another personnel screw-up by >>> >> organizations that have such snafus on a regular basis for all >sorts of >>> >> reasons, brings home the point that race remains an incredibly >salient >>> >> characteristic. >>> >> >>> >>Pamela S. Karlan >>> >>Kenneth and Harle Montgomery Professor of Public Interest Law >>> >>Stanford Law School >>> >>559 Nathan Abbott Way >>> >>Stanford, CA 94305-8610 >>> >>[EMAIL PROTECTED] >>> >>650.725.4851 >>> > >>> >>> -------------------------------------- >>> >>> Scott Gerber >>> Law College >>> Ohio Northern University >>> Ada, OH 45810 >>> 419-772-2219 >>> http://www.law.onu.edu/faculty/gerber/ >>> >> > -------------------------------------- Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
