Mark Scarberry writes: "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."
I think these are policy questions for the state to decide. (e.g., Should we adopt an affirmative action program, and if so, for what purpose, and what is the best way to structure one?) However, my own view of this, as a policy matter, is no. Benefits should not be automatically limited to direct descendants of victims of past racial discrimination. Why? 1) i don't think that past racial injustice is the only justification for affirmative action, although I think it is a sufficient justification, at least where there are still present effects, (continuing racial injustice, educational, economic and professional disparities.) However, there are other justifications like the importance of diversity to educational product (which is itself can be, but is not necessarily, imperilled because of the reality of past racial discrimination. It may be imperilled for other reasons - not a lot of people of color in this state for example. ) 2) even if past harm were the only justification for affirmative action, I don't think the present effects of past racial injustice are not limited to the direct descendants of those who were oppressed. Thus the present victims include other groups. For example, the racial caste system that was developed during slavery and its Jim Crow aftermath evolved to imprison not just blacks, but hispanics, asians, etc. into racial straitjackets that raise barriers to their ability to flourish within this society. There are also other nonracial barriers, economic, religious, nativist, physical (height, weight, physical attractiveness etc.,) that also present obstacles to success. To the extent these groups were harmed, government could also try to address their harms as well. (in fact, under current doctrine, government clearly could without any constitutional barriers, except if the historical barrier is race - and to more limited extent gender.) Go figure that. Of course, the contours of any particular plan would depend upon its goals. If the goal is a racially diverse educational body, then new immigrants may be part of that diversity, even though they do not have a history of racial discrimination in this country, if they are underrepresented in the nations universities. My reliance on past discrimination was not to exclude other goals but to point out that at a minimum, race has to be relevant to solving the legacy of past racial discrimination, and so at a minimum eq p. clause can't prohibit the state from taking race into account to at least do this. The details I think should generally be left up to the state, as long as they are not excluding people because of hostility, antipathy or prejudice,. or creating a new privileged class. [Scott gerber is correct that the Court has held that a mere assertion that the state is remedying "societal discrimination" in the abstract , is not enough to legitimate an affirmative action plan, on the view that remedying "societal discrimination" is too amorphous a concept to be a feasible goal for a narrowly tailored affirmative action plan. I think this standard improperly substitutes a judicial remedial standard, for a legislative one. Ditto the court's focus on past "unlawful discrimination." Courts remedy violations of laws. Legislatures remedy social problems, even ones that aren't illegal. But even if a desire to remedy societal discrimination alone isn't doctrinally sufficient to constitutionally justify an affirmative action plan, this can't mean that the equal protection clause requires the goverment to actually ignore the real impact of past (and present) pervasive societal discrimination, even where such past discrimination is clearly relevant to the legitimacy, efficacy and fairness of current government action. That would require the governmetn to make mad educational policy. We can see this with educational decisions.For example, ignoring history of racial discrimination would lead us to undervalue the importance of racial diversity. For students of all races to not be exposed to people from with different experiences of race in America is to limit them to an educational environment which presents a truncated picture of reality, a tragedy in a country with our history, which needs people more, not less, race savvy. Similarly, ignoring the role of historical racial discrimination, can cause educators to overestimate the worth of ostensibly "neutral" educational standards, like standardized tests, in measuring student excellence, thus causing them to miss superlative students from backgrounds (both race, class, disability, etc.) where it was more difficult to to achieve the standard "props." THus, a first generation college student from a racially segregated educational institution in an high crime urban area in which good libraries and computers are very hard to come by (not to mention adult mentors with two and three graduate degrees) is obviously less likely to attain 1600 SATs or 180 LSAT scores than a 5th generation graduate school student who attended a leafy suburban high school with twice the per pupil expenditure Even where there is class advantage, there can still be racial disadvantage. For example, a a black 5th generation graduate student from the same leafy suburban high school, even though more privileged than both white and black students of lower socioeconomic class, might be less privileged than the 5th generation white student graduate student from the same leafy school, because the white student likely had more access to mainstream social cultural, intellectual and economic networks which create intellectual capital (like how to do those ! analogies on the SAT). A "neutral" test score, falsely makes it appear all students are fairly measured by the same standard, when they may not be. Here consideration of the legacy of our history of race and class (and other) barriers is educationally relevant to deciding who are best students and the constitution should not be interpreted to require the school to ignore that reality, merely because the reality is race-based. [This is, actually similar to Scalia's argument that the schools could increase diversity by removing discriminatory admissions standards (in particular standardized test scores, ) which are poor proxies for merit, but which do grandfather in past privilege (both race, class and nativism privilege). Scalia, of course, doesn't put it that way - he claims the issue is one of "elite" vs. "non-elite" standards. This isn't so - abandoning one discriminatory selection method doesn't necessarily means abandoning selectivity altogether.] Finally, the existence of historical discrimination is relevant to determining whether an affirmative action program unfairly burdens the rights of non-minorities. If the nonminorities benefitted from past racial privilege, this mutes their claims that they are unreasonably harmed, compared to those who are disadvantaged by such past racial privilege. THus, the presence of historical racial discrimination, particularly provably traceable to each benefiicary, may not be dispositive in determining the validity of an affirmative action plan, but it is certainly relevant, and it may be the main reason why you have to affirmatively take race into account, for your government policies to work well. It thus can't be unconstitutional, per se, for the government to try to counter the adverse effect of this historical discrimination on the efficiacy of their government policies. 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: Mark Stephen Scarberry[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Tuesday, May 27, 2003 10:58 AM > To: [EMAIL PROTECTED] > Subject: Re: affirmative action > > 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/ > >> > > >
