David Bernstein writes: " If someone wants to make the arguments that particular groups of Latinos or Asians, e.g., the Hmong, are especially isolated and impoverished, and therefore should be included in AA programs, at least presumptively, I think there's a reasonable case to be made (note that the district court found that Michigan LS in practice limited its program to Mexican Americans and mainland Puerto Ricans). But to include all Latinos of any background in such a category I think reflects ideological suppositions rather than sociological reality."
HI david Are your premises here that: 1) except for isolated and impoverished pockets, Asians and Latinos are no longer discriminated against in our society because of their race or ethnicity - shown by a) society's current repudiation of the overt and explicit race-based exclusion and oppression of the past (No Chinese need apply), and b)the economic, residential and social integration of these groups within the society. (asians and latino living in racially integrated suburbs.) 2) the only justification for affirmative action is remedying past or present discrimination - and that the value of racial and ethnic inclusion or "diversity" is not a legitmate goal unless it is a remedy for such past or present discrimination. If so, I disagree with the first one as a matter of fact. Just because there are no signs up that say "No chinese need apply" does not mean that negative or stereotypical racial attitudes are not still present in society, sub rosa, and do not still adversely affect the opportunities of people of color, including Asians and Latinos. (See for example the fashion spread in the Sunday NYT magazine "Latins are not Lousy Lovers" - which was a profile of Latin American polo players as hot -blooded sex objects, based upon their ethnicity. I'm sure the spread was well-intentioned in a perverse kind of way - but it betrayed, at least to me, an underlying discomfort or perhaps ill-comfort with the common humanity of Latin Americans - what does being Latin have to do with whether someone is a lousy lover (and why should anyone other than their significant other care?) ) As to the second idea, I disagree on principle. Racial and ethnic diversity (ie having a racially and ethnically inclusive educational system, and power structure), is no less important to our society than economic class diversity, or geographic diversity, etc., all of which are uncontroversially permissible factors to consider in making admissions decisions. I agree that remedying past and present discrimination is a compelling governmental interest, and I disagree with the Court's conclusion that past or present "societal discrimination" - is somehow too amorphous a goal to justify any governmental remedy.) However, this does not mean that racial and ethnic diversity itself is not an independent goal, including including recent immigrant groups, who may not have been subject to the discrimination of the past, whether or not they are facing present barriers to inclusion (Of course, if they are not facing present barriers, then they shouldn't be underrerepresented in educational institutions in the first place, and thus shouldn't need affirmative action. Although, any minority group, is likely to get lost in the very large applicant pool of schools like UMich, where almost all of the apps are from nonminority applicants.] To the extent that they are members of our society, their voices and perspectives should be heard on our campuses and included within our power structures, just as the voices of people from different economic classes and different geographic regions should be heard. And, if they are nonwhite, their experience within this society is going to be different, because race is and always has been one of the basic organizing principles of our society (like economic class and social status.) If you are nonwhite (or white) you cannot escape this, no matter how hard you try. (Ask the Latin American polo players who posed for the NYT spread) By the way, I really liked your Lochner and Chinese exclusion article. For several semesters, I've used it in my class discussion of Yick Wo. 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: Saturday, June 28, 2003 10:59 AM > To: [EMAIL PROTECTED] > Subject: Re: Puzzles re: Grutter and Korematsu - hispanics and segregated > schools > > I've written a lengthy article and one shorter article myself about discrimination > against the Chinese and Japanese in the West, so I am perfectly aware of it (as well > as the history of discrimination against Mexicans in particlular) I'm also aware > that the vast majority of Asian-American families (and Latinos) have arrived in the > U.S. post-1965, in much more enlightened times, with legal protections that even > white "ethnic" immigrants could have only dreamed of 100 years ago. The > anti-miscegenation laws of the past have been replaced with very high intermarriage > rates, Chinatowns largely with integrated suburbs (especially after first > generation), etc. The integration of the post-1965 wave of "non-white" (quote marks > because it's not at all clear to what extent Latino immigrants and their descendants > are or will be defined by others as non-white, and as Jim Chen has noted those of > Asian descent are often de facto defined as white for AA purposes) immigrants is > going far ! more smoothly than could have been imagined at the time, even if pockets of discrimination still exist. It serves neither the law nor the future well to pretend that "people of color" are an undifferentiated mass whose legal status should be defined by the still relatively precarious status of African Americans. If someone wants to make the arguments that particular groups of Latinos or Asians, e.g., the Hmong, are especially isolated and impoverished, and therefore should be included in AA programs, at least presumptively, I think there's a reasonable case to be made (note that the district court found that Michigan LS in practice limited its program to Mexican Americans and mainland Puerto Ricans). But to include all Latinos of any background in such a category I think reflects ideological suppositions rather than sociological reality. > > > P.S. The two articles are > > Lochner, Parity, and the Chinese Laundry Cases, 41 Wm. & Mary L. Rev. 211 > (1999) > > and > > Two Asian Laundry Cases, 24 J. Sup. Ct. Hist. 95 (1999). > > > > > In a message dated 6/28/2003 11:22:29 AM Eastern Standard Time, [EMAIL PROTECTED] > writes: > > > > I might add that both Latinos--mostly Mexican-Americans-- and Asians were > discriminated against by law in western states, especially California, for > many years. There are numerous histories documenting discrimination against > both groups ( e.g., McEvoy's *The fisherman's Problem* documents legal, > political, and social discrimination against Japanese fishers in Calif..) > Indeed, of course, we have a sorry national history going back at least to > the *Chinese Exclusion Cases*, the 1924 (?) Act denying citizenship to > Japanese immigrants, etc. > > > > > > > >
