Robert Sheridan writes: I can't think of a single group of people, from Eskimo to Gypsy, from Irish, to Italian, to Jew, from Puerto Rican to Mexican to Cuban, from Spaniard to Russian to German, from English to Scot, which does not meet the inclusive definition of 'unique [life] experience' sufficiently to warrant an official helping hand ....Who are the right people and who are the wrong people today when it comes to receiving benefits funded in part by public money? Nicaraguans? Salvadorenos? Vietnamese? Koreans? Taiwanese? Hong Kongese? Mainland Chinese? Filipinos? India? Pakistan? Afghan? Iran? Iraq? Haiti?
If we lived in a society in which race and ethnicity did not matter, then you are right, ethnicity would be irrelevant to "life experience," viewpoint, etc. For example, have hair color, or eye color doesn't matter much in our society, and so no one would say that a school had a compelling governmental interest in recruiting more blondes or brunettes or redheads. But historically, our society has been organized by race and ethnicity, and thus these characteristics substantially affect people's life experiences. Thus a Latino's experience is different because he or she is Latino, just as the experience of someone from a rural community is different urban dwellers. These experiences shape ideas, values, etc., and excluding persons from these backgrounds intellecutally impoverishes the academic community. (just as limiting a law school to NYC upper east siders or Chicago south siders would be intellectually impoverishing) Thus, universities seek diversity in their academic classes all the time. . They recruit and admit students from diverse geographic, sociocultural, communities, etc. .No one doubts, for example, that a school could look for more more international students, letting them in over local students with higher numerical credentials.) Indeed, school look for a variety of characteristics other than numbers . No school e simply lines up candidates picks in descending order of LSAT and GPA until the class is filled. If so, why would you need an application? Only transcripts and test scores.) Such a students admission would not be a "benefit funded by public money," any more than any other student admitted by the school would receive a "benefit funded by public money" Rather, their admission is based upon the school's definition of what factors are relevant to their admissions process. Why should race or ethnicity be different, given the impact of race and ethnicity on students life experiences? Why shoudln't this diversity include Filipinos, Eskimos, Icelanders, if the school wishes?. Perhaps the argument is that other applicants are somehow cheated out of their admission to the class - but no applicant has any entitlement to admission to any school, just because his or her test scores were higher than other people who were admitted. Its up to the school who to let in. If Grutter sued because other white students were let in with lower numeric credentials than hers (which they were), the complaint would have been thrown out of court. Of course, affirmative action is also a remedial tool to help groups subject to past discrimination, but I don't think such past discrimination is a prerequisite for inclusion, any more than past discrimination would be a prerequisite for seeking to include rural students or poor student's in one's law school class. Robert Sheridan also writes: " Is Ward Connerly, the U.C. Regent who led the Prop. 209 initiative against racial preferences in university admissions, public contracting, and employment, wrong when he says affirmative action rewards the wrong people and punishes the wrong people?" Affirmative action doesn't effectively address the profound difficulties of most of the really poor and isolated minority underclass, (Affirmative action does help the very high achievers of this group, but most are too disadvantaged to qualify for affirmative action. If you drop out of high school, you're not going to law school, affirmative action or no.) But it is hard to see how making universities monolithically white and upperclass would be help. Rather, a society which is more racially and ethnically inclusive might be better equipped to formulate solutions to these problems. As to lower income whites, ending affirmative action won't help them because there are too many upper income whites with higher test scores ahead of them.) A class upgrade would help them, but that does not require ending affirmative action. Maybe overeliance on affirmative action makes other solutions for these groups politcally more difficult to achieve - but that's a political strategy problem, not a constitutional law problem. Connerly should develop positive proposals to address these problems and figure out a way to get them passed. 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: Robert Sheridan[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Wednesday, June 25, 2003 9:32 PM > To: [EMAIL PROTECTED] > Subject: Re: Puzzles re: Grutter and Korematsu > > Prof. Barksdale writes: "...In any event, whether many Latinos think that > they are white, whatever that means, is not relevant. even if true which I > doubt. They, as a class, have unique experiences which contribute to the > diversity of educational institutions..." > > *** > > I could use a little enlightenment on what values are included within what > I assume is a portmanteau word in the sense it carries a lot of baggage: > "diversity." > > List of possible values include: > > Members one identifiable group sit in class with members of other groups. > Physical proximity breeds respect when it doesn't breed disrespect. > Self-segregation at lunch and in social settings is either okay, > overlooked, or impossible to stamp out to date. > > Members of each group recite according to the beliefs common to that group. > > Members of each group fail to recite according to beliefs common to that > group. > > Members of other groups conclude that their other-group classmates express > typical views of their group, except when running not true to form. > > Members of all groups learn that there IS no view common to any > identifiable group over the long term, except the desire to be treated > equally and otherwise not singled out. Perhaps THIS is what student-body > diversity most should teach. Perhaps THIS is what Justice Thomas is trying > to teach. > > Intergroup friendships form which opens eyes all the way around. > > Discussions occur in and out of class which open eyes. > > Conflict among groups leads to demonstrations and protests and opens eyes. > > So much for the student contribution to understanding. > > Now for what the curriculum and the teachers provide: > > The professordom is diverse, promoting some educational value as well as > role models; > > The professordom is not particularly diverse, but still provides an > excellent grounding in various subjects. > > Early attempts at promoting diversity in this country, as I understand it, > concerned "group" diversity. Example: The "balanced ticket" in NYC > elections, where Irish, Italian, and Jewish names had to appear on the > ballot, or the Democratic Party ballot at least. On the Republican side > were the Roosevelts, the Rockefellers, for example, and other white > Protestants. That was before 'other-than-white' members of the population > existed, politically, except to be kept down. > > Now the definitional focus shifts from diversity as to 'group' identity to > 'unique [life] experience' that justifies including, say Latinos, whatever> > THEY are, as beneficiaries of special efforts at inclusiveness. > > I can't think of a single group of people, from Eskimo to Gypsy, from > Irish, to Italian, to Jew, from Puerto Rican to Mexican to Cuban, from > Spaniard to Russian to German, from English to Scot, which does not meet > the inclusive definition of 'unique [life] experience' sufficiently to > warrant an official helping hand. > > Scrutinizing the word more or less strictly, "diversity" strikes me as > being a term of convenience imported to justify special treatment of > certain minorities whose members HAD been discriminated against after too > much time had gone by to really set things right by benefiting the actual > victims and punishing the victimizers for unjust enrichment. Is Ward > Connerly, the U.C. Regent who led the Prop. 209 initiative against racial > preferences in university admissions, public contracting, and employment, > wrong when he says affirmative action rewards the wrong people and punishes > the wrong people? > > Who are the right people and who are the wrong people today when it comes > to receiving benefits funded in part by public money? Nicaraguans? > Salvadorenos? Vietnamese? Koreans? Taiwanese? Hong Kongese? Mainland > Chinese? Filipinos? India? Pakistan? Afghan? Iran? Iraq? Haiti? > > Perhaps we could choose up sides and pick just the ones we like! > > This is is one devil of a slippery slope, if you ask me, and why people > like Richard Pryor and George Carlin were invented, I think, for the > ironies abound once one enters the slide. > > It's probably also the reason that constitutional law words don't bear too > much definitional analysis, or you'll get into one of those spiraling > infinite regresses that'll drive you mad. Terms like 'strict scrutiny' and > 'diversity' are imported to STOP the argument, not to fuel it, even though > we all know that is exactly what such words provide the likes of us, fuel > for further argument, and the story continues ad infinitum, one hopes. The > rest of the country, however, I suspect glosses over such words, supplying > a meaning satisfactory to the individual, thus avoiding rioting in the > streets. > > The most inconvenient thing you could ever hope for is some ABSOLUTE > definition, enduring for all time, of some constitutional law word or term. > Because then we'd have to ignore it to get past it, wouldn't we, or jump > past it on the back of some distinction we're great at creating. The more > absolute and inflexible the injunction, the less useful it is to decide the > NEXT case that comes up. > > Robert Sheridan > [EMAIL PROTECTED] > > > > [Original Message] > > From: Barksdale, Yvette <[EMAIL PROTECTED]> > > To: <[EMAIL PROTECTED]> > > Date: 6/25/2003 9:08:25 AM > > Subject: Re: Puzzles re: Grutter and Korematsu > > > > David Bernstein writes: > > > > "Is there anything in the Michigan opinions that explains why > Latinos, who, as discussed in Peter Schuck's great new book on diversity, > mostly consider themselves to be white, have mostly have arrived since > 1965, and have high rates of intermarriage with whites, should be eligible > for the same preferences as African Americans? " > > > > The quick answer is that the Michigan program was justified on diversity > grounds, not past discrimination grounds (the Court explicitly rejected > the intervenors defense of the michigan plan as a remedy for the > university's past discrimination, concluding that the school had not > justified the plan on that ground.) > > > > Latinos, as a class, have a diverse perspective because of their unique > experiences in this country, and are underrepresented on our nation's > campuses, and thus they are certainly within the state's compelling > governmental interest in attaining racial and ethnic diversity. > > > > IN any event, as a factual matter, Latinos have, as a class, been> > subject to pervasive racial discrimination in this country for centuries, > regardless of whether many or most are recent immigrnats. There is an awful > lot of critical race theory scholarship documenting the history of > discrimination against Latinos and its effects. A good reference to start > with is the Perea, Delgado, Harris, and Wildman casebook Race and Races; > Cases and Resources for a Diverse America (West 2000), which discusses the > divergent experiences of racial discrimination of several groups, > Afircan-Americans, Asian Americans, Latino -Americans and Native > -Americans, and also cites to a lot of scholarship. > > > > In any event, whether many Latinos think that they are white, whatever > that means, is not relevant. even if true which I doubt. They, as a class, > have unique experiences which contribute to the diversity of educational > institutions. I haven't read Peter Schuck's book, but I would be very > suprised if he argued that Latinos were just another mainstream white > ethnic group. > > > > 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: David Bernstein[SMTP:[EMAIL PROTECTED] > > > Reply To: Discussion list for con law professors > > > Sent: Wednesday, June 25, 2003 10:17 AM > > > To: [EMAIL PROTECTED] > > > Subject: Re: Puzzles re: Grutter and Korematsu > > > > > > Is there anything in the Michigan opinions that explains why Latinos, > who, as discussed in Peter Schuck's great new book on diversity, mostly > consider themselves to be white, have mostly have arrived since 1965, and > have high rates of intermarriage with whites, should be eligible for the > same preferences as African Americans? (I returned from Israel yesterday, > and haven't had time to slog through the opinions). > > > > > > Professor David E. Bernstein > > > George Mason University School of Law > > > http://mason.gmu.edu/~dbernste > > > blog: http://bernstein.blogspot.com > > > *********************************************** > > > My latest book, You Can't Say That! > > > The Growing Threat to Civil Liberties > > > from Antidiscrimination Laws, will > > > be published in October > > > *********************************************** > > > >
