Has Obama Killed Affirmative Action?

Jonathan Kaufman asks that question in the Wall Street Journal from last week.

The issue of affirmative action is likely to dog Sen. Obama on the campaign trail as he seeks to win over white blue-collar voters in battleground states like Michigan. For many of these voters, affirmative action has been divisive since the 1970s. Ward Connerly, a prominent affirmative-action opponent, is seeking to place anti-affirmative action referendums on the ballot in Arizona, Nebraska and Colorado. Voters would be asked to ban "preferential treatment" of women and minorities in state university admissions, the filling of state-funded jobs and awarding of state contracts.

White anger over affirmative action has diminished as the Supreme Court has systematically narrowed the scope of programs in colleges and the workplace. Still, the gap between black and white opinion remains wide.

More than half of blacks -- 57% -- say the country should make "every effort to improve the position of blacks and minorities, even if it means giving preferential treatment," according to a poll conducted last year by the Pew Research Center, a non-partisan Washington think tank that studies social attitudes. Just 27% of whites agree with that view. The same poll shows that nearly half of whites -- 48% -- believe the U.S. has "gone too far in pushing equal rights in this country." Far fewer African Americans -- 27% -- agree.

Opinions about affirmative action vary depending on how researchers word their questions; support tends to grow, for example, when the question describes the programs in more detail. But the Gallup polling firm says that regardless of the wording, all of its surveys on affirmative action show blacks overwhelmingly support it, while whites tend to be much more divided.

Teh problem with affirmative action is that the program designed origianally to provide equal opportunity was somewhere along the line perverted into a short hand for equal outcomes and thus, the notion of quotas was born, either by crafty legal argument or by poor judicial reasoning, or both. That is where I think most whites came to have problem with affirmative action and as a consequence began to despise the program.

If couched in terms of giving everyone a fair and equal opportunity to succeed, then the idea gets less opposition. But when affirmative action came to be equated with government mandated quotas and equality of outcome, the concept began to rankle a fair number of people.

The biggest problem facing the country now that we have been held hostage to affirmative action as it had been bastardized is where do we draw the line? At what point in time does efforts by the government sufficiently compensated minorities for their years of oppression? Furthermore, how long will this country substitute race for other disparaties of opportunity? Finally, how "black" does one need to be to be considered a minority?

Obama, a man of mixed racial heritage is the first truly non-white to have a real chance to win the White House? Is that not evidence enough that we as a nation have indeed turned a corner? What about Colin Powell, Condoleeza Rice, Clarence Thomas or Charlie Rangel? What about Robert Johnson? Oprah? What about all the black athletes in basketball, football and baseball (among other sports) that less than 60 years ago were forbidden to play in white leagues? How much further do blacks have to rise in this country for white America to demonstrate that they no longer have to suffer the slings and arrows of past history for black Americans to understand that success or failure lies in their own hands, not in the hands of others? Surely, having a black man in position to become leader of the free world is enough? Isn't it?

Obama Asks SecDef About Military Suicide Rate

Thomas Sowell calls is "cocky ignorance." After noting a letter to the Secretary of Defense on the matter of military suicide rates, which have seen a spike of late, Sowell's notes that Obama's tone is more like a President than a U.S. Senator. But that really is of little consequence, most Senators have an overblown sense of their importance and perhaps Obama can be forgiven given is relatively new status as nominee.

But what Sowell calls him on cannot be forgiven:

All this sounds very plausible, as so many other things that Senator Obama says sound plausible. But, like so many of those other things, it will not stand up under scrutiny.

What has been widely publicized in the media is that suicides among American troops have gone up. What has not been widely publicized is that this higher suicide rate is still not as high as the suicide rate among demographically comparable civilians.

No one needs to be reminded that suicide is a serious matter, whether among soldiers or civilians. But the media have managed to create the impression that it is military service overseas which is the cause of suicides among American troops, when civilians of the same ages and other demographic characteristics are committing suicide at an even higher rate at home.

Moreover, this is not the first time that military service overseas has been portrayed in the media as the cause of problems that are worse in the civilian population at home.

Yes, suicides among military members are a tragic problem and one that needs to be addressed. But even as Sowell pointed out, it is not nearly as bad as it seems.

Let's take a look at a few reasons why the suicide rate is far lower in the military than in a comparable civilian population.

First, military members have a built in support network--the members of their unit. The unit personnel and their officers see them every day--particularly in a deployed situation. They eat, sleep, live and work together 24/7. When and if someone's mood shifts dramatically in a short period of time, people notice and if the mood becomes too dark, people notice and often help can be had in relatively short order. Conversely, a civilian who is not close to their co-workers (or works largely alone) and has few friends can be overlooked.

Second, the military works very had to ensure the health and well-being of its members. To a large extent the this is in the self-interest of the rest of the unit, but serves the individual well to boot.

Third, even if one is not religiously inclined, a military member can speak to a chaplain at anytime, for any reason and for the most part confidentially--unless that service members represents a danger to themselves or others. The chaplain is nearby, readily available and because they too are military, the chaplain can understand the pressures of military life far better than other resources.

Fourth, the military in the past several decades has learned that mental health awareness is necessary and programs are available.

Many of these features are not available or not as easily available, without cost, to a civilian. Thus, where a civilian may have to pay for mental health services, even a small co-pay, such services are free and easily found for the military.

Yes, the Pentagon should investigate the spike in suicides amoung military members, as it is a troubling trend. But Senator Obama does not need to push the panic button yet.

Affirmative Action, Law Schools and the Mismatch of Minority Students

Earlier this week, I posted on an article in the Wall Street Journal by Gail Heriot discussing a study by UCLA professor Richard Sander that argued that many law schools, particularly the highest tier schools, actually do a disservice to minority students by accepting academically less qualified students under "affirmative action" programs. I wrote on Tuesday:

Far too many people, including it should be noted, the Supreme Court of the United States, has a stake in the practice of affirmative action admissions. The argument, frequently made, is that a "critical mass" of minority students adds to the education of the entire class. A better argument to make is that a critical mass of minority lawyers adds to the reputation and honor of the profession and current admission practices appear to make it hard to add to that critical mass of attorneys.

The inestimable Michael Barone also wrote about the issue, noting

Law school administrators, like university administrators generally, nonetheless cling desperately to racial preferences. So does the American Bar Association, which is trying to impose "affirmative action" policies on law schools as a condition of accreditation, a move that seems to have prompted the Civil Rights Commission report. The report gives ammunition to those of us who have criticized these administrators for preening self-righteousness. They want to pat themselves on the back for admitting large percentages of blacks but at the same time seem to have no interest at all in the percentage who actually graduate or pass the bar exam. They can't bear the thought that their institutions will have a lower percentage of blacks than some other institutions they regard as morally inferior (e.g., the United States military and big-city police forces).

Barone may have said "seem to have no interest at all" in the post admission success of minority students, a sentence that Ann Althouse took exception to:

He must know the law schools care deeply about the success of our graduates. But I understand his point. It's that if we really wanted the ends we care about, we ought to abandon the approach to admissions that the commission criticized.

But there is no "we" here. As Barone notes, the highest ranked law schools absorb much of the limited pool of minority applicants, and this affects the other law schools, which also want to admit minority students. The law schools are not all going to change at the same time, and we are are in competition with each other. If any school changes, others will look for ways to take advantage.

Which brings us to another important point, Sander's work has been criticized by many, but so far his data regarding law school performance has held up to scrutiny, but there has been little cooperation from the state bar associations to provide data on the admission of minority attorneys to the bar and the results of bar exams. As Heriot noted in her article:

Unfortunately, fair-minded scholars are hard to come by when the issue is affirmative action. Some of the same people who argue Mr. Sander's data are inconclusive are now actively trying to prevent him from conducting follow-up research that might yield definitive answers. If racial preferences really are causing more harm than good, they apparently don't want you--or anyone else--to know.

Take William Kidder, a University of California staff advisor and co-author of a frequently cited attack of Sander's study. When Mr. Sander and his co-investigators sought bar passage data from the State Bar of California that would allow analysis by race, Mr. Kidder passionately argued that access should be denied, because disclosure "risks stigmatizing African American attorneys." At the same time, the Society of American Law Teachers, which leans so heavily to the left it risks falling over sideways, gleefully warned that the state bar would be sued if it cooperated with Mr. Sander.

Sadly, the State Bar's Committee of Bar Examiners caved under the pressure. The committee members didn't formally explain their decision to deny Mr. Sander's request for these data (in which no names would be disclosed), but the root cause is clear: Over the last 40 years, many distinguished citizens--university presidents, judges, philanthropists and other leaders--have built their reputations on their support for race-based admissions. Ordinary citizens have found secure jobs as part of the resulting diversity bureaucracy.

The problem of course is that it is easy to pick apart Sander's research and I think even Sander would appreciate a critical dialogue, but beyond the numbers provided by law schools, the story is incomplete and the affirmative action interests are so great that it will take some of Sander's critics to actually break the state bars' reluctance to provide the necessary data. Vikrram David Amar, writing at FindLaw.com, is no fan of Sander's work, having penned a series of columns commenting on Sander's methods, policy implications and even results. But despite Amar's doubts, he is joining in a chorus of law professors and thinkers in calling on state bar associations to allow access to critical data.

Over the past year or so, Professor Sander and some other scholars - whose views on race-based affirmative action are quite varied - have starting seeking more thorough and more recent data from various state bars, especially California's, on this issue. If procured, such data may well go a fair way towards either debunking or confirming Professor Sander's hypotheses about so-called "mismatch effects."

Although I don't necessarily share Professor Sander's intuitions about precisely what the information will show, and indeed I may end up interpreting the data differently than he does, I joined the research group's request to have the data analyzed because I think questions like these should be tested against available real-world information.

However, many state bar officials seem reluctant to facilitate the inquiry. California, for example, has, at least for the moment, turned down the request before it, although the reasons it asserts - protection of individual privacy and internal bar precedent - don't hold up very well, given the specifics of how the project is designed and the fact that the bar has provided similar information to other research efforts in the recent past.

I believe that this project, and the larger issue of which it is a part, are quite important. Moreover, neither is going away anytime soon; one of the Commissioners of the US Civil Rights Commission wrote an Op Ed in last week's Wall Street Journal discussing the topic and highlighting its centrality...

I myself don't know how much of a mismatch effect our analysis will find. I would be quite pleased personally if regressions and other analyses debunk or tend to cut against the mismatch hypothesis advanced in Dr. Sander's Stanford Law Review piece. And I want very much the research group to run as many different kinds of tests and analyses as we can think of - using a variety of alternative assumptions about the way schools pick students, and the way students go about the task of learning the law - to make sure the research can be used by scholars across the ideological spectrum to make their best arguments.

But more than anything else, I want to move the debate forward and encourage - perhaps even force - people to confront whatever reality seems most likely to exist, even if our sense of that reality is not free from uncertainty, so that we can adapt policy (or perhaps just leave it alone) in a way that is most likely to accomplish our shared objectives of diversity and fairness.

Like it or not, law schools provide an unavoidable entry into the legal profession since most states no longer allow a person to read for the bar (that is take the bar exam after apprenticing with a practicing lawyer--a long tradition in American legal history). Thus, with the entry barrier in place, the legal community has a huge stake in making sure the entry barriers are fair to everyone and permit all students the same chance of passing the bar. Students who are mismatched with their school, that is admitted under circumstances more likely to lead to poor grades and possible bar exam failure due to lack of adequate preparation, are not being afforded the opportunity to best prepare for the bar exam and membership in the legal profession.

As I stated before, a critical mass of minority law students at a given law school is not nearly as important as a critical mass of minoirty lawyers practicing their profession. If law school admission policies are distorting the ability of minority students to enter the legal profession, and the bar associations have data that could either support or debunk Sander's thesis, then the data should be released and tested nine ways to Sunday by as many scholars with an interest. This is an important, if not the most important, debate in the legal education arena and I for one would love to see Sander's research and Amar's research side by side because then we can see, not only which view is correct, but also find ways to correct any problems that may be found.

Law School, Affirmative Action and Balck Lawyers

Gail Heriot, a law professor and member of U.S. Civil Rights Commission had an op-ed over the weekend in the Wall Street Journal, discussing a study by UCLA Law Professor Richard Sander in which Sander notes that despite affirmative action admission policies there are 7.9 percent fewer black attorneys than would have been present had law schools practiced color-blind admissions. Sander's thesis is that affirmative action admissions "mismatches" students with schools, in large part due to the admission of minority students we are not prepared for the school they attend.

Supporters of race-based admissions argue that, despite the likelihood of poor grades, minority students are still better off accepting the benefit of a preference and graduating from a more prestigious school. But Mr. Sander's research suggests that just the opposite may be true--that law students, no matter what their race, may learn less, not more, when they enroll in schools for which they are not academically prepared. Students who could have performed well at less competitive schools may end up lost and demoralized. As a result, they may fail the bar.

Specifically, Mr. Sander found that when black and white students with similar academic credentials compete against each other at the same school, they earn about the same grades. Similarly, when black and white students with similar grades from the same tier law school take the bar examination, they pass at about the same rate.

Yet, paradoxically, black students as a whole have dramatically lower bar passage rates than white students with similar credentials. Something is wrong.

The Sander study argued that the most plausible explanation is that, as a result of affirmative action, black and white students with similar credentials are not attending the same schools. The white students are more likely to be attending a school that takes things a little more slowly and spends more time on matters that are covered on the bar exam. They are learning, while their minority peers are struggling at more elite schools.

So schools lower admission standards for minority students "to give them a leg up" but in reality the move damages the minority student's chances of not only graduating but passing the bar exam.

In July 2005, I sat for the Maryland Bar Exam and for the first time in my life I failed an exam that had a direct impact upon my career. I hade failed exams in school before, but never, ever a test that impacted by my ability to work in my chosen field (I had to take a lot of exams in the Navy). I graduated cum laude from law school and if I can fail, imagine someone who struggled through law school academically taking the bar exam and passing the first time or any time. The numbers are not good:

Under current practices, only 45% of blacks who enter law school pass the bar on their first attempt as opposed to over 78% of whites. Even after multiple tries, only 57% of blacks succeed. The rest are often saddled with student debt, routinely running as high as $160,000, not counting undergraduate debt. How great an increase in the number of black attorneys is needed to justify these costs?

I believe that black lawyers are a boon to the profession, but more importantly, the profession has to maintain a stature within society worthy of the trust people place in attorneys. Affirmative action policies, if Sander's research is accurate, actually inhibit the ability of black students becoming lawyers and if true, the practice must be halted and right now.

The difficulty, of course, is that we as a nation and to a certain extent as a profession, have too much invested in affirmative action to simply stop the practice. More than a fair number of people, who don't want Prof. Sander's thesis proved or disproved (and so far his data has held up against some scathing critcisms).

No one claims the findings in Mr. Sander's study, "A Systemic Analysis of Affirmative Action in American Law Schools," are the last word on the subject. Although so far his work has held up to scrutiny at least as well as that of his critics, all fair-minded scholars agree that more research is necessary before the "mismatch thesis" can be definitively accepted or rejected.

Unfortunately, fair-minded scholars are hard to come by when the issue is affirmative action. Some of the same people who argue Mr. Sander's data are inconclusive are now actively trying to prevent him from conducting follow-up research that might yield definitive answers. If racial preferences really are causing more harm than good, they apparently don't want you--or anyone else--to know.

Take William Kidder, a University of California staff advisor and co-author of a frequently cited attack of Sander's study. When Mr. Sander and his co-investigators sought bar passage data from the State Bar of California that would allow analysis by race, Mr. Kidder passionately argued that access should be denied, because disclosure "risks stigmatizing African American attorneys." At the same time, the Society of American Law Teachers, which leans so heavily to the left it risks falling over sideways, gleefully warned that the state bar would be sued if it cooperated with Mr. Sander.

Sadly, the State Bar's Committee of Bar Examiners caved under the pressure. The committee members didn't formally explain their decision to deny Mr. Sander's request for these data (in which no names would be disclosed), but the root cause is clear: Over the last 40 years, many distinguished citizens--university presidents, judges, philanthropists and other leaders--have built their reputations on their support for race-based admissions. Ordinary citizens have found secure jobs as part of the resulting diversity bureaucracy.

If the policy is not working, they, too, don't want anyone to know.

Far too many people, including it should be noted, the Supreme Court of the United States, has a stake in the practice of affirmative action admissions. The argument, frequently made, is that a "critical mass" of minority students adds to the education of the entire class. A better argument to make is that a critical mass of minority lawyers adds to the reputation and honor of the profession and current admission practices appear to make it hard to add to that critical mass of attorneys.

Anti-Race Preference Languages Passes the House?

This bit of news did not make the mainstream media, at least I didn't see it.

an amendment to the Departments of Transportation and Housing and Urban Development appropriations bill, which would bar preferences in federal contracting, passed the House of Representatives.

snip

The language, introduced by Congressman Tim Walberg, reads: “An amendment to prohibit the use of funds be[ing] used by the Department of Transportation to promulgate regulations based on race, ethnicity, or sex.”

In other words, these agencies can’t consider race, ethnicity, or sex when hiring contractors with federal funds. No more set-asides.

Brown v. Board is Dead! Long Live Brown v. Board

In the New York Times, Juan Williams talks about how many liberals and getting Brown v. Board and the Seattle/Louisville cases all wrong about integration:

In 1990, after months of interviews with Justice Thurgood Marshall, who had been the lead lawyer for the N.A.A.C.P. Legal Defense Fund on the Brown case, I sat in his Supreme Court chambers with a final question. Almost 40 years later, was he satisfied with the outcome of the decision? Outside the courthouse, the failing Washington school system was hypersegregated, with more than 90 percent of its students black and Latino. Schools in the surrounding suburbs, meanwhile, were mostly white and producing some of the top students in the nation.

Had Mr. Marshall, the lawyer, made a mistake by insisting on racial integration instead of improvement in the quality of schools for black children?

His response was that seating black children next to white children in school had never been the point. It had been necessary only because all-white school boards were generously financing schools for white children while leaving black students in overcrowded, decrepit buildings with hand-me-down books and underpaid teachers. He had wanted black children to have the right to attend white schools as a point of leverage over the biased spending patterns of the segregationists who ran schools — both in the 17 states where racially separate schools were required by law and in other states where they were a matter of culture.

If black children had the right to be in schools with white children, Justice Marshall reasoned, then school board officials would have no choice but to equalize spending to protect the interests of their white children.

Brown v. Board was about resources, not diversity. In segregated schools, black children received a pittance in resources compared to white students. The fact that integration would end racial discrminiation was a side effect of what Marshall and the NAACP was seeking at that time.

Today however, the school districts with the largest black and Hispanic populations also tend to have the highest per pupil expenditures in the nation. Look at Newark and Washington, DC as two examples. Newark is spending in excess of $17,000 per student and DC is just over $15,000 or twice the national average per student. No one can legitimately argue that the goal of Brown as stated by Justice Thurgood Marshall, equalized spending, has not been achieved--in fact it has been surpassed. Additionally, as Williams pointed out:

Racial malice is no longer the primary motive in shaping inferior schools for minority children. Many failing big city schools today are operated by black superintendents and mostly black school boards.

The issue now is not a question of resources or leadership, but of quality. If money bought quality, the Newark and Washington DC schools would be leading the country.

So it is time for the United States to begin looking beyond Brown? Absolutely. Racial problems will not be sovled by talking about race, but only when we stop talking about race. Schools are inequitable now for a whole host of reasons, none of them related to racial policies. De facto segregation, as a result of community and economic conditions is the cause of schools being overwhelmingly one race or another in many cases. But what most liberals are failing to grasp is that the adherence to the Brown ruling is actually ruining public education. We have focused so long on achieving "diversity" that we have failed to address quality. A quality education is not found in a diverse classroom alone, but it is found in a classroom with clear standards, high quality teachers, caring parents and a dedicated community. If it happens to be diverse, great, if not, we should not lose sleep because some kids' classroom is 70 percent black or 25 percent black.

The Unintended Consequences of the ERA

This Op-Ed by Ilya Somin in the Legal Times raises some interesting questions with regard to uninteded consequences of passing the recently resurrected constitutional amendment:

What is surprising, however, is how many of the ERA’s probable effects will come as an unpleasant surprise to the amendment’s predominantly liberal supporters. If enacted, the ERA will likely curtail governmental affirmative action for women and invalidate public school programs that provide targeted assistance to African-American boys, results that many liberals are likely to deplore.

Among the items that may surprise people would be the elimiatnion of affirmative action programs for women (including minority women), the eligibiity of women for the draft, that is mandatory selective serive registration for our young women as well as young men, and possible the legal recognition of same-sex marriage.

But what it won't do is elimiate the so called Pay Gap:

Many ERA advocates claim that the ERA will improve the economic status of women. For example, Rep. Carolyn Maloney (D-N.Y.) claimed that the ERA might help change the fact that “women still get only 77 cents for every dollar that men are paid.”

In fact, studies by economists conclude that most of the pay gap between men and women is a result of differences in occupational choices, not discrimination.

But even if discrimination does play a major role, the ERA is unlikely to affect the pay gap. The amendment would ban discrimination only by government, not by private employers. Most sex discrimination in government employment is already forbidden by federal statutes and by the Supreme Court’s interpretation of the equal protection clause.

So, the ERA may pass, although ratification would be difficult at best. But in doing so, ERA supporters may be greatly upset by the results.

Wisconsin To Consider Affirmative Action

Ann Althouse has the background, but concludes her post:

I understand Grothman's point, that diversity-based admissions ought to connect to some real diversity that the student will bring to the classroom. But isn't his solution worse than the problem he cites? We're going to ask students to prove what percent of a race they are? That's really ugly, worse than abolishing affirmative action altogether I would think.(emphasis added)

This sounds eerily similar to this post I had nearly two years ago:

Multiracial students will present the greatest challenge for the country and the courts when it comes to affirmative action. Let us consider an extreme example. A multiracial child is born of parents in South Carolina. The white mother can trace her ancestry to slaveowners in plantation South Carolina. The black father can trace his ancestry to black slaves of the North Carolina tobacco country. The child is applying to colleges and is denied admission to her top choice schools for whatever reason. The child then says, because she is partially black, she is entitled to admission or at least reconsideration for admission under affirmative action. The question is, is she entitled to such treatment because she is 50% black?

What if we as a society say yes, the above mentioned child is entitled to affirmative action consideration? So here is another line question. If the above mentioned child qualifies for affirmative action treatment, where do we draw the line as far as mixed race children go. Does the child need to be 50% minority? 30%? 25%? What about technology that could prove minority genetic make-up despite the fact that the child looks predominantly white, or predominantly asian? Professor Rosen takes up the case:

As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a [professor] at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage. "I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,'" he said. '"The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.'"

Rosen and Amar then postulate a legislative reaction in a state that says the social understanding test is too speculative, so you have to have a genetic test and anyone with a drop of minority blood would be eligible for affirmative action treatment. As Rosen writes

:"It would recall the shameful history in times of slavery and Jim Crow," [Yale law professor Paul] Schuck told me, "in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites." Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. "I think as pressure on affirmative-action programs increases," he said, "affirmative-action programs will have to make refined judgments about eligibility."

If one drop of blood was sufficient to make a person a slave in Pre-Civil war America, allowing the same standard for qualification under affirmative action has not leveled the playing field, but made it more combative. The weapons of the combat will be based on which people can afford the most precise genetic tests. How, in a society that values equality of treatment under the law, do we justify such a concept? How, as a society of laws, will the legislatures and the courts deal with such line-drawing?

If affirmative action is at the point that you have to prove your minority in order to qualify or that you have to prove your diversity, then perhaps the idea and program is something whose time has come and gone.

If diversity really is beneficial to education (and I am not saying it is not beneficial) surely there must be a different way to achieve diversity of background. Would the University of Wisconsin benefit from having some kids from Miami, Florida in the school? Perhaps, but at least geographic diversity is easier to achieve and you don't have to alter your admission requirements to achieve geographic diversity.

Ward Connerly's Battle In Arizona

Fresh off a massive success in Michigan, Ward Connerly is taking his battle to five states in 2008 to have racial preferences banned in all state activity. Jennifer Rubin has a nice piece on the effort in Arizona, including this story that served as part of the impetus for taking the effort to Arizona:

Andrew Thomas, Maricopa County Attorney, is the local honorary chair of the Arizona initiative. He has been inspired to join the cause against racial preferences because of his experience battling against classification by race in the county court system. He describes two separate courts for drunk driving defendants -- the “Spanish DUI court” and the “Native American DUI Court” -- which have been set up to oversee probation violations of defendants by racial group. As opposed to the “regular” DUI courts, these special courts, according to Thomas, hand out lighter sentences for probation violations. He terms this system “amazing and disturbing.” He notes that “even at the height of Jim Crow we had people brought to the same bar of justice.”

Thomas’ lawsuit challenging this system was dismissed but he is appealing the case. It is not clear whether the Arizona initiative will be drafted so as to cover the Maricopa court system. However, the initiative proponents hope that the impact of a successful public referendum on racial classifications will, at the very least, mobilize public opinion against what Thomas believes is an “anti-American” system of unequal justice.

snip

The proponents of the Arizona initiative will have a clear message which they say will not deviate depending on whether the audience is Hispanic students or African American businessmen or white government employees. Speaking of the need to eliminate race as a consideration for school admissions, Gratz says: “It is a matter of fairness. Everyone deserves to know if they are accepted or rejected based on their merit.” She says that minority students must live with the “stigma of race preference” as their peers doubt whether they were really admitted because of their personal achievements or whether it was their race which vaulted them over other better qualified candidates.

Bolick believes that Arizona’s large Hispanic population has good reason to support the ban. Bolick argues that “once you have explicit classifications by ethnicity” fuel is added to anti-immigrant sentiments. Moreover, Hispanics and all citizens should recognize, according to Bolick, that racial and ethnic preferences “rarely trickle down to people most in need.” Gratz agrees that by eliminating racial preferences Arizona universities and colleges, like their counterparts in California after Proposition 209, will be forced to concentrate on “socio-economic” hardship and first generation college status. As things stand now Gratz contends that “elites” view race preferences as a “blanket” solution for minorities in education, employment and contracting and think they “do not have to do much” to improve education and employment for minorities.

The truth is that equal protection, the heart of teh 14th Amendment which is often cited as a reason for racial preferences has been perverted to teh point of being unrecognizable. Good Luck to Bollick and Gratz.

The Beginning of the End of Affirmative Action

Linda Chavez writes:

This week marks the beginning of the end of the racial spoils system that has come to symbolize affirmative action in higher education, as well as state contracting and employment. Ward Connerly, chairman of the American Civil Rights Institute and the father of the California Civil Rights Initiative, which abolished state-sponsored racial preferences in California more than a decade ago, has launched a new effort to place similar initiatives on the ballot in 2008 in several states, including Colorado, Missouri, Oklahoma and Arizona.

snip

In the 40 years that affirmative action programs have operated, millions of deserving white and Asian students have been passed over at competitive schools across the country in order to admit black and Hispanic students with significantly lower standardized admission test scores (usually 200-350 points lower on a 1600-point scale) and lower high school grades (typically a half point lower on a 4-point scale). These affirmative action students often struggle to compete in the classroom, and huge numbers of them simply drop out. Instead of helping black and Hispanic students succeed, affirmative action programs mismatch students and institutions.

But an end to racial preferences won't mean a return to the days when blacks and Hispanics were simply missing from college classrooms, as in my youth. In California, which outlawed preferences in 1996, more black and Hispanic students are enrolled in college today than ever before -- and more importantly, a higher percentage of them are graduating. In 1995, only 26 percent of black and Hispanic students actually graduated from the UC system; now 51 percent graduate, roughly equal to the white and Asian rate.

Affirmative action programs were never meant to be permanent, something former Justice Sandra Day O'Connor reiterated in her majority opinion in the Supreme Court's 2003 University of Michigan law school case. Yet these programs are still available to the children -- and even grandchildren -- of the students I taught 40 years ago.

It's about time we ended racial double standards once and for all. In doing so, we will actually improve the chances that more black and Hispanic students will earn college degrees.

Of course, we need a K-12 education system that works as well, but affirmative action as it now stands, needs to be desroyed. Read the whole thing.

Ward Connerly to Launch Civil Rights Initiative in Colorado

via Discriminations. Connerly will be holding a press coference at 9:30am Mountain Time announcing an initiative in Colorado similar to the successful campaign in Michigan. The operational language reads:

The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.

Connerly is teh scourge of the liberal left. First as a black man, he is considered to be a traitor to his race for not wanting preferences of any kind. Second, his success, even in the face of liberalism amoung the "elite" just drives the left nuts. Third and finally, he has logic on his side and logic and liberalism simply don't mix.

What is interesting is that Connerly is taking his fight to a state with a decidedly leftward trend. I wish him luck and as soon as I get a little more money, he will get a share of it.

Urban--the New Code Word?

La Shawn Barber, in typicially brilliant fashion, reminds us that the word "urban" is now becoming a synonym for "black."

Some schools are taking pre-emptive action against Department of Justice (DOJ) investigations and private citizen lawsuits by removing blatantly illegal, racially exclusive language from scholarships and replacing it with the new descriptor, “urban.”

Urban, of course, is code for “black.” Northeastern University has opened its Ujima Scholars program to all students, but with a catch. The program will target students from an “urban background.”

This could lead to some questions later down the road, but at least the term is not blantantly racial. But then again, terminology is often spun to create definition far from the original.

Neighborhood Based Racial Balancing

As the Supreme Court of the United State weighs their decision in the racial integration cases arising out of Louisville and Seattle, a new idea for racially balancing our schools has recieved its first and most certainly not its last, hearing in a California State Court. Vikram David Amar's column at Findlaw.com presents the case, American Civil Rights Foundation(ACLF) v. Berkeley Unified School District and its future legal implications quite well. However, aside from the legal problems, there still seems to be the issue of the fact that we are still looking to race as a short hand for providing a diverse educational experience.

The Seattle and Louisville cases each involves a student assignment system in which the school district considers the race of individual students in determining which school each student attends. Although the Seattle and Louisville plans are not identical, both take into account a student's race as one of the "tie-breakers" to be used when more students than can be accommodated seek to attend a given school.

snip

The Berkeley plan that was upheld by a state court judge last week also seeks to integrate schools so that each one looks, racially speaking, somewhat like the district as a whole. And again, the stated justification is that students at all schools should benefit from the diversity found within the district as a whole. (emphasis added).

But Berkeley officials had one problem that Seattle and Louisville school administrators did not: In California, a state constitutional amendment adopted by the voters in 1996 (Proposition 209) forbids, among other things, all "discriminat[ion] against, or preferential treatment to, any individual on the basis of race. . . in the operation of public education."

Seemingly because of this state constitutional provision, Berkeley officials devised a plan that looks, when school assignments are made, not to the race of each individual student, but instead to the racial makeup of the neighborhood from which that student comes. Under the plan, the City is broken up into 445 separate "planning areas," each one between 4 and 8 city blocks in size. Every planning area is assigned, based in part on the percentage of students of color who live there, a "diversity" score of 1 to 3. The diversity score of a student's neighborhood, among other things, is then used to decide where that student should be sent to school.

So instead of looking at the race of single child, the school district created smaller districts and now look at a collection of students and their race. The idea being that looking at the race of a group versus a single individual would avoid the problems providing a racially diverse student population. But the school district is still looking at race of children in determinging school assignments with the goal of having a school reflect the relative racial balance of the city.

One small problem is that many people, especially me, are not convinced that a racially diverse student population improves the educational experience of children, particuarly younger children in elementary school. Once can make a case that students in high school and/or college might benefit from a more diverse student body and generally, the larger the school, the more likely you will find such a diverse student body.

But elemetary school is about basic skills, or should be, reading, writing, basic math, basic science. These basic skills are not culturally dependent, they are not or rather should not be influenced by a student's racial heritage. So the Bereley integration plan is simply a means to enforce some sort of liberal racial policy rather than a sound educational policy.

The Daily Top Five: March 13, 2007

1. Roger Simon asks, How Pure Does Rudy Have to Be? His answer can be summed up as "do Republicans want purity or the Presidency." Personally, I like Guiliani and as Simon noted from George Will, I know where he stands on social issues and it doesn't bother me. The only thing I want Rudy to shift on is immigration. He and many others need to look at the matter as a national security issue and not a labor issue. But other than that, he looks pretty good to me.

2. Gen. Peter Pace has issued a statement regarding his comments about homosexuality. My thoughts on the original subject are here. I like Pace's comments, saying he should not have provided a personal answer but stuck to Pentagon policy. He didn't apologize for his views and he shouldn't under any circumstances.

3. The current Democratic strategy of building a time table into the supplemental appropriations bill is not getting good reviews, even from the Washington Post:

Congress should rigorously monitor the Iraqi government's progress on those benchmarks. By Mr. Bush's own account the purpose of the troop surge in Iraq is to enable political progress. If progress does not occur, the military strategy should be reconsidered. But aggressive oversight is quite different from mandating military steps according to an inflexible timetable conforming to the need to capture votes in Congress or at the 2008 polls. Ms. Pelosi's strategy leads not toward a responsible withdrawal from Iraq but to a constitutional power struggle with Mr. Bush, who has already said he will veto the legislation. Such a struggle would serve the interests of neither the Democrats nor the country.

Of course, another failure to even pursue a course of action will signal yet another policy failure for the Democrats.

4. I forgot about this Op-Ed by Sen. Edward Kennedy from Sunday's Washington Post, which starts:

Rome wasn't built in a day, but if this new Congress had been its architect, it might have been. It has been just 66 days since Congress changed hands, and already the results are remarkable. In my 45 years in Congress, I have never seen the Senate turn so rapidly from stalemate toward real progress. While the daily media focus may be on our internal debates or the next presidential election, the biggest news of 2007 is that the election mattered and that the Democrats have already delivered for the American people.

What utter bombast!!! I don't know what Senate Kennedy is looking at but the U.S. Senate hasn't done anything. The examples Kennedy lists, hearings on the Walter Reed mess ("uncovered" by the Dems according to Kennedy, but I thought it was reporters--but that may be teh same thing), forcing the banking industry to admit that fees might be too high--oh my goodness (not that everyone but the banking industry didn't know that), hearing testimony about the non-scandal of U.S. Attorney firings and so on. Not one of the examples Kennedy talks about was actually done by the Senate. The Senate may have talked about the issue, but they certainly didn't do anything.

5. La Shawn Barber offers a lesson in affirmative action. While her post is dedicated to Univerity of Michigan President Mary Sue Coleman, who has vowed to disboey the voters of Michigan who passed an anti-race preference referendum in 2006, the message applies to everyone who calls anti-preference people racists.

The original purpose behind affirmative action was to reach out to Americans once excluded from certain admissions and hiring processes because of race and include them in a wider pool of candidates. The idea was to give qualified blacks an opportunity to apply to colleges and for jobs previously closed to them. What affirmative action turned into was a racial spoils system by which underqualified blacks were admitted or hired, despite not being as qualified as everyone else in the pool. Do you see the distinction?

Barber links to a wonderful, older article that destroys the concept of equality in admissions at UM.

Roberts and Affirmative Action Line Drawing

This is the second in a series of posts regarding what I think are future issues for the Court. The first post on abortion is here. The Senate Confirmation hearings just provide a great excuse for opining, just like everyone else.

As expected, Judge Roberts is getting a grilling from Senators Kennedy, Biden and others on the Senate Judiciary Committee regarding affirmative action. Roberts views on this are pretty well known, he doesn't like quotas, but has done work on affirmative action in the past. However, like all Senate hearings, this confirmation hearing is looking to the past to ask questions instead of asking questions about the future impacts of issues, as Professor Jeffrey Rosen suggested in this New York Times article (subscription required-sorry) which originally appeared on August 28 in the NY Times Magazine.

I am not sure what motivates Judge Roberts' opposition to affirmative action, but my motivation has always been about lines, that is where do we draw the lines defining the scope of affirmative action? The limits of affirmative action, whether they be temporal, racial, socio-economic or otherwise, have been the downfall of the policy.

No rational observer of history can deny that racial discrimination did not exist in this country. However, affirmative action was not the best program to address past inequities, merely the easiest. It was easy for the government to say, "We should cut people a break to make the playing field level," but the result of the policy was a counting game. Looking at a class of people and counting became the determination of affirmative action. Call it what you want, quotas, reparations, or fairness, but proportional representation became the goal and all other standards became secondary. Of course, the liberal left and minorities would say, "the discrimination happened, you have admited as such and implicitly admit that some sort of correction was necessary." Indeed, but affirmative action means that when dealing with resources which are finite, a zero-sum game exists. In order for someone to get a break, someone must lose out, perpetuating some form of discrimination.

But any rational observer of history will note that we cannot go back and alter history, the plain fact of the matter is that affirmative action exists. Fine, but that returns us to the original problem--where do you draw the lines going forward? Let me offer a hypothetical. Student A and Student B both come from households that fall well below the poverty line. Both children live and went to school in districts that were poorly funded, received free lunches, received government subsidized health care and were in all respects equal in terms of academic preparation, i.e. identical 3.0 GPAs and 1200 SAT scores. These students worked hard to get where they are, ready for college

You should know where I am going. Student A is black and comes from inner city Atlanta, Student B is white and comes from rural southwest Georgia. If both applied to the University of Georgia, the black student has a much greater chance of getting in, a greater chance that can be statistically calculated, merely because of his race.

But this is an old problem. What Professor Rosen pointed out in his article is that technology and the changing demographic nature of the country are going to wreak havoc on contemporary notions of affirmative action as currently formulated.

If current demographic trends continue, over the next few decades the United States will become more diverse. The Census Bureau estimates that the number of non-Hispanic whites may shrink to less than half of the population before 2060 and that Hispanics will soon outnumber blacks. As intermarriage rates continue to rise, more and more Americans will consider themselves multiracial. This is a recipe for conflicts over affirmative action and public entitlements.

Multiracial students will present the greatest challenge for the country and the courts when it comes to affirmative action. Let us consider an extreme example. A multiracial child is born of parents in South Carolina. The white mother can trace her ancestry to slaveowners in plantation South Carolina. The black father can trace his ancestry to black slaves of the North Carolina tobacco country. The child is applying to colleges and is denied admission to her top choice schools for whatever reason. The child then says, because she is partially black, she is entitled to admission or at least reconsideration for admission under affirmative action. The question is, is she entitled to such treatment because she is 50% black?

What if we as a society say yes, the above mentioned child is entitled to affirmative action consideration? So here is another line question. If the above mentioned child qualifies for affirmative action treatment, where do we draw the line as far as mixed race children go. Does the child need to be 50% minority? 30%? 25%? What about technology that could prove minority genetic make-up despite the fact that the child looks predominantly white, or predominantly asian? Professor Rosen takes up the case:

As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a [professor] at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage. "I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,'" he said. '"The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.'"

Rosen and Amar then postulate a legislative reaction in a state that says the social understanding test is too speculative, so you have to have a genetic test and anyone with a drop of minority blood would be eligible for affirmative action treatment. As Rosen writes:

"It would recall the shameful history in times of slavery and Jim Crow," [Yale law professor Paul] Schuck told me, "in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites." Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. "I think as pressure on affirmative-action programs increases," he said, "affirmative-action programs will have to make refined judgments about eligibility."

If one drop of blood was sufficient to make a person a slave in Pre-Civil war America, allowing the same standard for qualification under affirmative action has not leveled the playing field, but made it more combative. The weapons of the combat will be based on which people can afford the most precise genetic tests. How, in a society that values equality of treatment under the law, do we justify such a concept? How, as a society of laws, will the legislatures and the courts deal with such line-drawing?

I have not even explored other issues such as the economic issues. How can we say that a black child born of rich, upper middle class parents is entitled special consideration as opposed to a poor white child from Appalchia? What about immigrants from Africa or Latin America that are clearly of a particular race, but, because they are first generation immigrants, have not been subject to the history of discrimination in this country?

These are the questions that should be asked of Judge Roberts, but won't be. Partly because Judge Roberts is smart enough to know that such issues will be coming up in the court system, and partly because the Senate is notoriously bad about looking forward, we won't get answers. But at least if the question were asked in such a public forum, the real debate can begin in America about what are the appropriate lines to draw in affirmative action or even if we still need affirmative action.

In the OTB Traffic Jam and Basil's Blog

Affirmative Action and Education Standards

One of the interesting things about blogs and blogging is the plethora of interesing material out there. Nobel Prize winning economist Gary Becker and Judge Richard Posner have a blog (creatively titled The Becker-Posner Blog) which generally features more lengthy posts about a variety of topics of interest to the two gentlemen.

Recently Gary Becker posted an entry called On Affirmative Action.

The heart of the argument is this:

Most affirmative action programs, disguised or openly, use lower standards for African Americans and members of various other minority groups than for white males in determining whether they are promoted to higher level jobs in private business or government, admitted to better universities, and in other situations...It is obvious why affirmative action may hurt members of the majority group who are denied promotions or admission to various colleges, even though their records are better than many minorities accepted. But why is it bad for a country like the United States to do this, and often also for the minority groups gaining these privileges? My belief is that affirmative action is bad for any country that aspires to be a meritocracy, as the United States does, despite past slavery and discrimination that are terrible violations of this aspiration. The case for a meritocracy is that achievements based on merit produces the most dynamic, innovative, and flexible economy and social structure. Encouraging promotion or admission of less qualified applicants because of their race, gender, or other characteristics, clearly violates this principle, and produces a less progressive economy, and a distorted social structure.

Thus, Becker believes affirmative action is destroying America because it creates and perpetuates the very double standard that once existed as discrimination. Affirmative action now creates a lower standard for minorities rather than a higher standard created through more openly discriminatory programs of the past.

I can remember as a younger person hearing that standardized tests like the SAT and the ACT among others were "culturally biased." Today, a similar argument is being made against the NCLB standardized testing regime, although the term culturally biased is not used. The heart of NCLB, in my mind, is to hold schools accountable for teaching kids using ONE standard.

When people claim that testing to one standard is discriminatory in effect against minorities or the poor, what they ask for is an affirmative action style, double standard, i.e. a lower one for those lower on teh socio-economic ladder. Such a double standard inherently keeps such students down on that ladder. The question to ask when "advocates" posit a different standard is this, at what point in time will this double standard be lifted? The answer will always be some sort of wishy-washy statement like, "when the students demonstrate more capability of working at or above grade level" or some other mealy-mouthed horse puckey.

If you want education to be about providing opportunities, you cannot take opportunities away at the outset by making one group of people less beholden to group goals. Separating groups based on current skills and giving them a lesser goal does not aid them, it hinders them, just as affirmative action has hindered many minorities. Just because you can't do it now doesn't mean you won't be able to do it in the future with hard work.