Not to belabor this thread too much (actually its probably too late for that), but one
more comment:
David Bernstein writes:
I appreciate Yvette's inclusive definition of diversity, but if everyone is
eligible for AA, then AA has no purpose. If only some groups are eligible for AA,
there must be a coherent rationale for why those groups, as a class, are eligible, but
others aren't.
__________________________________________
I agree with you that the affirmative action case is stronger for some groups than for
others because of remedial considerations which vary based upon the substantiality of
the present effects of past/present discrimination. However, this does not preclude
diversity itself as a sufficient basis for affirmative action, at least in university
admissions.
THis is because "affirmative action" , if broadly defined as considering personal
background information, is actually the norm, not the exceptionin university
admissions decisions. Once a school gets beyond the automatic admits - those whose
accomplishments are so sterling the university chases them, rather than the other way
around, admissions officers always give boosts for personal background factors which
add to the intellectual, economic, cultural, artistic and other diversity of the
school. This is especially true at highly competitive schools with hordes of
applicants for a few slots.
The anti- race-based afirmative action argument has always been that race and
ethnicity, uniquely, have to be constitutionally irrelevant background factors as a
matter of principle (gender diversity gets in because of intermediate scrutiny). But,
I think the real question is why should race and ethnic background be the only
biographical factor excluded from admissions decisions, given its large significance
in our society. Viewed in this light, looking at racial and ethnic diversity simply
fleshes out the applicant's "personal story."
I agree with you though, that, as a matter of fact, not all ethnic backgrounds
necessarily add to the diversity of the university, particularly backgrounds which are
not underrepresented, or have little significance in shaping an applicant's biography.
But, I think the schools can be trusted to make that judgment (what kind of diversity
do we want?) absent some evidence that "diversity" is simply a cover for a bald
racial or ethnic preference (as in, "I like people of Scottish descent, and so I am
going to give them the edge regardless"). And, remember, the Court requires the school
to make these admissions judgments on an individualized, rather than category-wide,
basis.
yb
-----Original Message-----
From: David Bernstein [mailto:[EMAIL PROTECTED]
Sent: Tue 7/1/2003 6:16 PM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: Puzzles re: Grutter and Korematsu - hispanics and segregated
schools
In a message dated 7/1/2003 5:37:22 PM Eastern Daylight Time,
[EMAIL PROTECTED] writes:
> 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.)
>
Answer: No, I simply pointed out that the discrimination faced by Latinos
(esp. Mexicans) and Asians 100 years ago is of a very different magnitude than
the discrimination they face today, and this is especially relevant because a
large majority of Asians and Latino families in the U.S. have arrived since
1965, and thus are not descended from those who suffered from the discrimination
of 100 years ago, so the arguments in favor of preferences for these groups
based on what happened 100 years ago are less strong than they may at first
appear. By contrast, a large majority African American families were here 100
years ago and beyond. This suggests that both for diversity (because the groups
have very different tenures and experiences in the US) and remedial purposes
that it's foolish to lump all "minorities" into one group, as all of the Grutter
opinions do (any comments on Justice Thomas's absolute insistence that all
"minorities" must be treated exactly alike for diversity purposes?).
> 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.
>
Answer: Diversity may be a legitimate goal, especially for university
admissions, but I can't figure out why a child of Argentine immigrants of Italian or
German descent (who in no sense, I think, is a "racial minority"), is
presumptively more diverse than a child of Greek or Arab immigrants, or an Amish or
Seventh Day Adventist believer, etc. For that matter, I don't see any recent to
believe that the hypothetical Argentine American has presumptively faced more
discrimination than the other examples. I do think that by far the strongest
constitutional case for AA is not the diversity rationale, but the remedial
rationale, and primarily as applied to specified groups that have suffered
grevious discrimination and isolation.
I appreciate Yvette's inclusive definition of diversity, but if everyone is
eligible for AA, then AA has no purpose. If only some groups are eligible for
AA, there must be a coherent rationale for why those groups, as a class, are
eligible, but others aren't.
