Prof. Barksdale writes: "...I concluded that I have really underestimated the sincerity with which people could see affirmative action as just another garden variety form of racial or ethnic discrimination - as exclusion rather than inclusion."
*** I thought that was a very good thing to say for this reason. It wouldn't be CONSTITUTIONAL law if whatever subject under discussion didn't reflect the most sincerely held knife-pulling, bomb-throwing, conflicting beliefs about how the world ought to be arranged. Viz: Dred Scott, as only one example. It's hard, sometimes, to recognize that a belief one disagrees with, that one thinks is so obviously wrong, that gives no weight at all to something one dearly believes with all one's heart, could possible be held SINCERELY, particularly if there's another plausible explanation. In Conlaw, the alternative plausible explanation that is often easiest to blame is "politics," or "a political agenda." People less conservative than Rehnquist, Scalia, and Thomas sometimes marvel at the latest conservative opinions they come out with. "They can't be serious about that, can they? Do they really believe that? Or is this just that old conservative agenda rearing its head?" You bet they're serious and sincere at the same time, and if that fits in with what others say is a conservative agenda, that's just the way it is. The socially conservative Scalia remarked, from the depth of his heart, I have no doubt, that the majority in Lawrence seems to have signed on to "the homosexual agenda." I think the combined majority in Lawrence would be almost amused to think that's what they'd done. Both of the major conflicting views in that case were fully and terribly sincere, I have no doubt. Incidentally, this from today's San Francisco Chronicle, by columnist Jon Carroll, who comments "I was unaware that the official agenda had already been issued by the Head Homosexual," quoting a contributor named Anthony Barcellos, on the "homosexual agenda:" "6 a.m. Gym. 8 a.m. Breakfast (oatmeal and egg whites). 9 a.m. Hair appointment. 10 a.m. Shopping (preferably at Neiman Marcus or Nordstrom). 11 a.m. Brunch. 2 p.m. Assume complete control of the federal, state and local governments. Destroy Christian marriage. Replace all school counselors in grades K-12 with militant recruiters for the homosexual lifestyle. Bulldoze all houses of worship or redecorate them as discos. Secure total control of the Internet and all mass media. Be utterly fabulous! 2:30 p.m. Get 40 winks of beauty rest to prevent facial wrinkles from the stress of world conquest; aromatherapy. 4 p.m. Cocktails. 6 p.m. Light dinner (soup, salad [arugula with balsamic vinegar dressing], Chardonnay. 8 p.m. Theater 10:30 p.m. Cocktails in a charming neighborhood bistro. Midnight. Bed (du jour)." *** It's not every day that one sees a bit of humor on a sincerely held hot Conlaw topic. Bob Sheridan SFLS Robert Sheridan [EMAIL PROTECTED] > [Original Message] > From: Barksdale, Yvette <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 7/7/2003 3:51:18 PM > Subject: Re: Puzzles re: Grutter and Korematsu - hispanics and > > Scott Gerber writes: > "I can't speak for the others she singles out...." > > Hi, Scott, > > I never meant to single anyone out personally- so I'm sorry if I left that impression. My post was the result of my own struggle to understand why many people are so strongly of the belief that pursuing racial and ethnic diversity, is so much more constitutionally problematic than pursuing other types of diversity, such as economic and geographic diversity. I excerpted the particular posts simply as examples of these views. > > I understand the arguments that colorblind race and ethnic neutrality is an absolute constitutional imperative, period. But there isn't anything in the language, intent, or purposes of the 14th amendment that supports such an absolute position. Perhaps, you could construe the 14th amendment this way, if you chose, but this position is a constittutional choice - not an automatic imperative (even for people, like originalists, who believe in constitutional imperatives). There's just no there there. So question, why choose a position against the pursuit racial and ethnic diversity, given its importance to our society. > > I also understand the "merit" based arguments that university admissions should be based purely upon academics. But those arguments would strike down economic, geographic and other kinds of "affirmative action" as well, which all consider factors other than academic merit. And moreover, these arguments seem better directed to university administrators, not constitutional courts. > > I also understand the arguments that only race-neutral means of pursuing racial diversity are permsisible. But no one argues that a school should pursue economic class diversity only by means that don't actually consider the economic class of the applicants. > > So, I tried to put myself in the shoes of people who hold these views, and my post was my best guess at what I think is at the bottom of these positions. I never intended to try to psychoanalyze individual posters, or anyone else. Rather, I tried to better understand their postion. > > I concluded that I have really underestimated the sincerity with which people could see affirmative action as just another garden variety form of racial or ethnic discrimination - as exclusion rather than inclusion. Of course, I think affirmative action, if done right, is clearly inclusion, not exclusion, for the reasons I stated in my prior post. > > yb > > > > > 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: Monday, July 07, 2003 4:41 PM > > To: [EMAIL PROTECTED] > > Subject: Re: Puzzles re: Grutter and Korematsu - hispanics and > > > > I think it's unwise for Professor Barksdale to try to say why someone > > she doesn't know feels the way they do about something. I can't speak > > for the others she singles out, but I simply think that it's > > unconstitutional to remedy discrimination by discriminating. I know > > that's not a popular view on the academic left, but it's not an > > unreasonable interpretation of the law. My experience in academe also > > has convinced me that most admissions and personnel committees won't > > exercise the restraint that Powell's opinion in Bakke, and now > > O'Connor's opinion in the Michigan cases, requires them to exercise. > > As I wrote for the National Law Journal, the good faith assumption upon > > which both opinions rely is naive at best. That said, I think this > > subject has run its course. > > > > Scott Gerber > > Law College > > Ohio Northern University> > > > > > > Barksdale, Yvette wrote: > > > > > > >Robert Sheridan wrote: > > > > > > "... enough generations have passed that a good many > > >> descendants of immigrants view themselves, and are viewed by others, > > simply > > >> as American, not Italian-American, Irish-American, German-American, > > etc. Same goes for blacks, Jews, Chinese, Korean, Cablinasian, etc., or > > should." > > >> > > >David Bernstein wrote: > > > "giving the Argentine of Italian descent an AA boost, but not a > > host of other worthy applicants who also have interesting backgrounds > > (and, like the Argentine, are considered by themsleves and everyone > > else to be white) on the ground that this hypothetical Argentine is a > > member of an ethnic/racial category called "Hispanic" strikes me as > > exceedingly arbitrary." > > > > > >Scott Gerber wrote: > > > What I hope doesn't happen is that the admissions personnel > > search during their individualized review for ways to admit preferred > > applicants and reject non-preferred applicants." > > > > > >I think the basic source of discomfiture that lies at the root of this > > essentially moral revulsion of many to racial or ethnic diversity based > > affirmative action (as opposed to geographic residence, or musical > > talent diversity), is that it puts many people, for the first time, on > > the wrong side of the immutability problem. Ineligibility for > > geograhic, or musical "affirmative action" could be altered by > > different choices, say, if an applicant's grandparents had stayed in > > rural Nebraska instead of immigrating to the upper West Side of > > Manhattan, of if the applicant had had taken violin lessons instead > > of becoming PacMan champion of their fifth grade class. In contrast, > > people on the "wrong side" of race or ethnicity affirmative action are > > inalterably excluded. If you are a member of the excluded group, its > > hard not to feel the unfairness of finding yourself excluded by factors > > over which which you have no control. > > > > > >OF course, the snide response would be "ok, now you see how the other > > half lives," since for many nonwhite people, race and ethnicity is a > > constant negative factor in how the world perceives and reacts to them, > > and consequently, how they live their day to day lives, rather than > > popping up only at isolated moments (e.g., college admission > > decisions). But I think this response too facilely minimizes the > > painful feelings of powerlessness that come from exclusion on the basis > > of racial or ethnic background. So the parallelism reaction "If its > > wrong to do it to them, its also equally wrong to do it to me, or > > people like me" I think is understandable, particularly if the > > beneficiaries of the affirmative action aren't personally identifable > > victims of past or present discrimination. > > > > > >I think the question is though whether this immutability problem trumps > > the need for racial and ethnic inclusion in a world in which 1) race > > and ethnicity matters, 2) the failure to explicitly consider race and > > ethnicity will result in nondiverse institutions, 3) institutions > > which are not racially and ethnically diverse are simply not as capable > > as ones which are, and 4) the underlying backdrop is our history of > > racial and ethnic degradation, discrimination, and exclusion, which is > > why race and ethnicity matters. > > > > > >I think clearly, an across the board exclusion of a particular race or > > ethnicity from an institution (these folks need not apply), has to be > > unlawful. But the need to consider race and ethnicity in a limited way > > for inclusion, rather than exclusion, has got to prevail, doesn't it, > > over the preservation of a social order in which our fundamental > > political, cultural and economic institutions are monolithic preserves > > of privilege and inclusion for a select few. > > > > > >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: Thursday, July 03, 2003 10:36 AM > > >> To: [EMAIL PROTECTED] > > >> Subject: Re: Puzzles re: Grutter and Korematsu - hispanics > > and segregatedschools > > >> > > >> This nausea inducing business of calculating the worthiness of people > > for > > >> inclusion and exclusion based on presumed racial or ethnic background > > may > > >> have a certain amount of unfortunate history to back it up, as to many > > >> groups, but why should we, in recognition of that, pretend it > > represents > > >> 'Equal protection under law?' > > >> > > >> Discussion of this group and that for singling-out overlooks a couple > > of > > >> significant developments that tends to make group-bias irrelevant, or > > >> should. > > >> > > >> The first is that enough generations have passed that a good many > > >> descendants of immigrants view themselves, and are viewed by others, > > simply > > >> as American, not Italian-American, Irish-American, German-American, > > etc. > > >> Same goes for blacks, Jews, Chinese, Korean, Cablinasian, etc., or > > should. > > >> > > >> The second is that the lines between groups have been deteriorating at > > an > > >> increasingly greater pace over the past six or seven decades since my > > >> Irish-Catholic father married my Polish-Jewish mother, giving me a > > sort of > > >> skewed-perspective on such matters. > > >> > > >> It is hugely annoying to think that ordinary American young men and > > women > > >> like Grutter and Gratz are singled out for exclusion by race, just as > > it is > > >> hugely annoying to reflect that blacks have been singled out for all > > the > > >> grief visited on them over the not decades but centuries in North > > America. > > >> > > >> I can understand what the Court felt the country needed to do to > > rectify, > > >> to the extent it could, its bad history, but I tend to think of it as > > equal > > >> protection suspended for the next quarter century in recognition that > > it > > >> isn't really equal protection, after which one may hope the current > > idea > > >> has become irrelevant to the way we get along together much better. > > >> > > >> What gives me hope is that I attended two graduations over the past > > month, > > >> sat in the audience for four to five hours at each, at U.C. Berkeley > > and > > >> M.I.T., where literally thousands graduated at each. I was struck by > > the > > >> diversity around me, which I don't for a moment believe is > > attributable all > > >> to affirmative action. I don't think these kids want to hear they were > > >> singled out by race or ethnicity. I think they want to be respected > > for > > >> their merit, as they certainly were based on what I witnessed. > > >> > > >> > > >> Robert Sheridan > > >> [EMAIL PROTECTED] > > >> SFLS > > >> > > >> > [Original Message] > > >> > From: Barksdale, Yvette <[EMAIL PROTECTED]> > > >> > To: <[EMAIL PROTECTED]> > > >> > Date: 7/3/2003 8:01:37 AM > > >> > Subject: Re: Puzzles re: Grutter and Korematsu - hispanics and > > >> segregatedschools > > >> > > > >> > 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. > > >> > > > > > > > -------------------------------------- > > > > Scott Gerber > > Law College > > Ohio Northern University > > Ada, OH 45810 > > 419-772-2219 > > http://www.law.onu.edu/faculty/gerber/ > >
