NOT AGAIN. The first memory that most of my friends and I share is that terrible day in January, 1986, when we huddled around televisions and radios in our elementary schools to share in the experience of the first teacher in space. The Challenger became our JFK.

Now, it appears, it has happened again. I have lost my interest in posting today. Instead, I want to post below President Reagan's speech, which seems hauntingly appropriate even today.

Ladies and gentlemen, I'd planned to speak to you tonight to report on the state of the union, but the events of earlier today have led me to change those plans. Today is a day for mourning and remembering. Nancy and I are pained to the core by the tragedy of the shuttle Challenger. We know we share this pain with all of the people of our country. This is truly a national loss.

Nineteen years ago, almost to the day, we lost three astronauts in a terrible accident on the ground. But we've never lost an astronaut in flight; we've never had a tragedy like this. And perhaps we've forgotten the courage it took for the crew of the shuttle; but they, the Challenger Seven, were aware of the dangers, but overcame them and did their jobs brilliantly. We mourn seven heroes: Michael Smith, Dick Scobee, Judith Resnik, Ronald McNair, Ellison Onizuka, Gregory Jarvis, and Christa McAuliffe. We mourn their loss as a nation together.

For the families of the seven, we cannot bear, as you do, the full impact of this tragedy. But we feel the loss, and we're thinking about you so very much. Your loved ones were daring and brave, and they had that special grace, that special spirit that says, "Give me a challenge and I'll meet it with joy." They had a hunger to explore the universe and discover its truths. They wished to serve, and they did. They served all of us.

We've grown used to wonders in this century. It's hard to dazzle us. But for 25 years the United States space program has been doing just that. We've grown used to the idea of space, and perhaps we forget that we've only just begun. We're still pioneers. They, the members of the Challenger crew, were pioneers.

And I want to say something to the school children of America who were watching the live coverage of the shuttle's takeoff. I know it is hard to understand, but sometimes painful things like this happen. It's all part of the process of exploration and discovery. It's all part of taking a chance and expanding man's horizons. The future doesn't belong to the fainthearted; it belongs to the brave. The Challenger crew was pulling us into the future, and we'll continue to follow them.

I've always had great faith in and respect for our space program, and what happened today does nothing to diminish it. We don't hide our space program. We don't keep secrets and cover things up. We do it all up front and in public. That's the way freedom is, and we wouldn't change it for a minute. We'll continue our quest in space. There will be more shuttle flights and more shuttle crews and yes, more volunteers, more civilians, more teachers in space. Nothing ends here; our hopes and our journeys continue.

I want to add that I wish I could talk to every man and woman who works for NASA or who worked on this mission and tell them: "Your dedication and professionalism have moved and impressed us for decades. And we know of your anguish. We share it."

There's a coincidence today. On this day 390 years ago, the great explorer Sir Francis Drake died aboard ship off the coast of Panama. In his lifetime the great frontiers were the oceans, and a historian later said, "He lived by the sea, died on it, and was buried in it." Well, today we can say of the Challenger crew: Their dedication was, like Drake's, complete.

The crew of the space shuttle Challenger honored us by the manner in which they lived their lives. We will never forget them, nor the last time we saw them, this morning, as they prepared for their journey and waved good-bye and "slipped the surly bonds of earth" to "touch the face of God."

(Courtesy of the Reagan Foundation, found at http://www.reaganfoundation.org/reagan/speeches/challenger.asp).

BEGGING OFF. No substantive posts tonight, even bloggers must have social lives.

But a preview of what's to come this weekend:

*Fisking Andrew Sullivan's Fisking of the New York Times
*Constitutional Interpretation and the 14th Amendment: Does it Mean Anything at All?
*Adarand, Croson, and Benign Purposes

Finally, my long-awaited response to Bob, which will include:

*Why race exists
*Why race matters
*Why people who support affirmative action aren't Nazis
*What evidence exists (based on 20 minutes of Googling) of ongoing racism
*Why racism that happened 20 years ago affects us today
*What Condi Rice and George Bush have in common, and what they don't
*What a critical mass is and why it's important
*The analytical, linguistical, and common-sense differences between a "goal" and a "quota"

I KNEW HE WOULDN'T LIKE MY PLAN. Bob's response:

I read it, and pardon me, but you haven't attempted to do it.

What does "self-identification" mean? When the administration expels someone who they have concluded is not really African-American, how does
the district court decide the question of fact? The child of white colonists from Kenya would have a good argument for being "African-American."

You've picked an ethnic group - "African-Americans." But that wasn't the task. The task was to, if not decide what ethnic groups you would have, at least figure out how you would decide what ethnic groups you would have.

Don't shift it onto Adarand; lets hear what you'd do.

How do you figure out what a "critical mass" is?

Samoans are a disadvantaged ethnic minority. There are not enough Samoans in the continental United States to make a "critical mass" anywhere.

In a school of 1000 students, 10 African-Americans are a "critical mass" if they're all assigned to the same dorm and first year lectures. Is that what you have in mind?

You say the class should reflect the society from which it comes. First of all, that's not the same thing as achieving a "critical mass." Second, that's a quota system.

If you're going to take the challenge, take it seriously. Put your drafting where your mouth is.



ANOTHER RESPONSE FROM BOB, TO THE GENERAL POINTS. My original comments are in [brackets] his response is in italics.

[Imagine, if you will, a room with a hundred people, even distributed among the races. In a perfectly colorblind society, no matter what the social measure, we would expect those hundred people to be distributed more or less randomly. But we all know that isn't the case in our society. So that means one of two things, either it isn't perfectly colorblind, or there something about relative abilities that correlates with race. Do anyone really think it's the latter?]

Or it could be different people migrating from different places at different times with different cultures.

But so what? Society has an interest in having those people who actually discriminate based on race compensate those people who suffer from that discrimination. Society has no interest in altering the statistical correlation between race and wealth as an end in itself. It has no interest in having those who have neither discriminated nor benefitted from discrimination pay the cost of remedying past or present discrimination. I do not see how society would be improved by, for example, randomly swapping the incomes of 20 million whites and african-americans.


[The flip side is that when those social goods aren't distributed randomly, some races are benefiting disproportionately, regardless of how long they have been in this country.]

Do you realize what you just wrote? "Races" are not people; they are not things that feel, benefit, or suffer.

This, frankly, is the basic point of disagreement between those who support and oppose affirmative-action. Those of us who oppose affirmative-action think that those who support it are racists. That is, they are people who believe: 1) that races are real things in that one is a member of one race or another; 2) that the self is constituted from one's race; 3) that it is morally acceptable to discriminate against people based on race; 4) that "races" have interests that government can take into account; and 5) that a social "good" is accomplished by benefiting one "race" at the expense of another.

It is the ideology of Al Sharpton as much as George Wallace, Hitler, and Farrakhan.

[Bob states that social betterment is in the aggregate, not in the distribution, so that it makes no difference to society whether the 1000 people who graduate from Michigan are all minorities, some minorities, or no minorities. I disagree completely. I don't think that any society could have social betterment in any real sense of that word where it completely ignores divisions among its people, if those divisions seem to have real social effect.]

And there you have it again. The only "social effect" is the existence of a division itself - that is, a statistically significant correlation between income and ethnic heritage. But, so what? There's a statistically significant correlation between income and non-ethnic heritage, i.e., how much money one's parents have.

Your argument must be that there is something especially obnoxious about having a statistical correlation between shares in the social pie and race - that there is something about race as a class that makes us suspicious of anything that correlates with it. (That "something" our belief that ethnicity has no correlation with _merit_.) But that's precisely the argument for heightened equal protection scrutiny: that race is not a category which provides a legitimate basis for altering results.

So again we come to the purported rationales for altering those results: Diversity as a benefit to all, remedying past government discrimination, and remedying present discrimination. (I note that you shift between them without recognizing the inconsistentcy.) And again we come to the problem that race does not correlate well to the pursuit of any of those goals.

[And I don't know of any reason why something that is permissible for the state legislature or the Congress should not be permissible for a university or school system. The only reasoning I can see for that would have to be some perversion of the old "non-delegation doctrine," warhorse, which, aside from some bad water in the D.C. Circuit recently, hasn't had a good year since 1937. At the least, Bob (or someone) has to explain, if racial classifications are completely impermissible for organizations other than state legislatures, why all of the school desegregation's that followed Brown aren't unconstitutional.]

The point is not that legislatures couldn't (as a matter of delegation) authorize schools to discriminate based on race. The point is that they haven't. (I don't know why this is so hard to explain, I think I've been pretty clear.)

Regarding the comparison to the Brown remedies: There is a difference, I think, been de jure segregation, on the one hand, and taking race into account to correct de facto segregation, after a judicial finding that the de facto segregation is disguised de jure segregation, on the other.

I have not suggested, by the way, that in some circumstances the government cannot be aware of the social existence of racial categories. In a Title VII case, were the fact of race to come up, for example, the court would inquire into the defendants' perceptions of the plaintiff's ethnicity. That's very different from the government deciding that there exist particular "races" and deciding who is, as a matter of fact-in-the-world, a member of which. The one recognizes the existence of racism; the other is racism.

[To wax lyrical for a minute, how many more generations of black people are we willing to sacrifice to the notion that our society is colorblind?]

Huh? I thought 2/3 of African-Americans were now in the middle class? I'm sorry, but I just don't believe that discrimination against African-Americans plays any significant role in society today. A lot of people seem to believe that it does, but they have a lot of trouble finding any.

And, frankly, what you're arguing right now is a return to pre-1950s civil rights law. Your argument for remedying social inequalities is separate-but-equal - the only difference is that you would make the separation de jure rather than spatial. Your argument for the benefit and detriment of "races" is the rationale for "anti-miscegenation" laws.

[As for whether race is always a differentiating factor in experiences: I'd like to think that it isn't. But I suspect that if I had a twin brother, identical in every respect except the color of his skin, that he and I could attend the same schools, the same colleges, date the same women, &tc., and we would still arrive at the age of 30 with different experiences.]

But not necessarily different in a way that expands the experiential diversity of the school. All people have different experiences from all others. There is no distinct "black experience" shared in this country by, for example, the descendants of the southeast's (small, but existent) black upper class, the child of black doctors in the New Jersey suburbs, and a gang member in Detroit. The class you would use - race - bears little if any relationship a diversity of "experience."

[And suggesting that they believe, either individually or as a group, that "government redistribution of wealth is a moral imperative" is just stupid. Is this just some cute way of insinuating that the evil Marxists have taken over our schools?]

Why is that stupid? Bollinger has certainly been very outspoken about his belief in government redistribution of wealth.

I don't think that "evil Marxists" have taken over our schools. I don't think that the culture that presently exists in our school administrations is based on a level of thought or analysis that rises to the level of a cohesive ideology. I think they're morons - unfortunately, morons sharing a common culture of political beliefs deeply out of touch with the people who employ them.

I would refer you to the continuing battles between the U. Cal. System and the government of California. Angela Davis, who had at the time had produced no work recognized by any institution as having any substance, was given a full tenure position for no reason other than her politics. (By the way, concerning her acquittal for conspiring to murder a judge: Her explanation of her innocence, made at a lecture of hers I attended during college, was "I didn't know what they were planning to do with those machine guns.") Basically, the faculty of U. Cal. decided that they liked Davis' views, and would therefore cause the people of California to subsidize the advancement of those views.

Immediately after the citizens of California passed a referendum banning affirmative-action - saying in no uncertain terms "don't do that anymore" - the administration announced that it would immediately begin work on trying to alter their admissions system so it might produce the same result.

Regarding defendant classes:

Tilley (decided a few weeks ago) is a very interesting opinion. The district judge first says that "I find Rule 23(b)(1)(A) an inappropriate ground for certifying the defendant class she proposed" and later that "I have already found the class certifiable for damages under Rule 23(b)(1)(A)." The judge noted his doubt that the case was certifiable under (b)(2), and that he was therefore declaring the class certifiable under both subsections. I'm going to guess that that opinion gets modified on reconsideration.

On review of Integra Realty, you are correct: defendant classes have been certified. I therefore modify my position: No mandatory 23(b)(1) defendant class has ever survived a challenge in a Court of Appeals.

AND FINALLY, BOB TAKES ISSUE WITH MESSRS BARLOW, KLEIMAN & AMPERSAND. (Sorry that was just too easy).

On a side note: I clicked the empirical evidence link on your page to the table of white admissions at top-5 colleges with and without affirmative action. Three points:

1. As the site readily admits, there is something odd going on in those statistics, since white students with high SAT scores appear to do better with affirmative-action. The site calls this statistical "noise." It appears to be noise larger than the number the statistical analysis is trying to measure - in other words, the sample size was too small to produce a statistically useful result.

2. The selected group of schools rather misses the point. The issue is not admissions at Harvard; Harvard's class size is to small and its admissions criteria too high to have any impact on any but a tiny number of people. The issue is admissions at the large state colleges. There, as the U. of M., U. Cal., and U. of T. statistics demonstrate, the difference in admissions rates because of affirmative-action are quite large. We're talking about 10-15% of the classes, before compensating with "top 10%" style alternatives. (This is because of top private colleges' vigorous pursuit of qualified minority applicants, leaving few for the state schools.) At those vastly larger and more numerous schools, a few percentage points is thousands of people.

As an aside to the aside: It is plainly correct that top-10% style programs do a much better job of targeting your goals (diversity of experiences, remedying social inequalities) than racial preferences. Geography correlates better to wealth, to membership in an "ethnic enclave," and to historical patterns of migration that might associated with diverse "experiences" than race does. Ask yourself why the universities prefer racial preferences.

3. I think the defendants in Bakke would be quite surprised to learn that he was a weak applicant. If you read the opinion of the Court of Appeals in that case, you will note that the defendants, upon being asked, could not say that Bakke would not have been admitted in the absence of their quota system. This is necessarily so, as a matter of the realities of litigation - the university would have had a complete defense if Bakke would not have been admitted anyway. Merely submitting an affidavit to that effect would have placed on Bakke the burden of proving that the universities' non-racial criteria were merely pretextual - he would never have been able to survive summary judgment.

BIG NEWS! Letter writer Anonymous has a name: Bob. Does anyone else want to jump in? The email address is rule11-at-hotmail.com.

FIRST, THE CHALLENGE: FORMULATE A POLICY. Bob suggests that I should write down a rule that says what I’m going to base the preferences on, how I will determine who gets what preference, and, what the goals of the preference should be.

So, here it goes. (For what it’s worth, this doesn’t represent the totality of a police I would adopt; rather, it’s an attempt to deal with the questions raised by this discussion)

1) Preference base: race, specifically, African-Americans
2) Determination: absent complete breakdown in the system, I would allow self-identification. If such a breakdown occurs (I don’t believe it would), then I’d fall back to whatever the current federal law is on this—for instance, whatever they use for the Adarand programs. If this doesn’t work, then I’m not sure what the next step would be.
3) Goals: a “critical mass,” ultimately approaching a class that would reflect the society from which the school recruits.

Frankly, I think the law school has it about right.

So there you have it. I’m not sure what this really proves; I suspect Bob and I will still disagree about 2) in particular. I don’t see why proponents of affirmative action have to take on problems that, in the vast majority of instances, simply don’t exist. But while I’m more than willing to take suggestions; what I won’t accept is the notion that because the definition is difficult it is impossible and shouldn’t be done. Denying there exists such a thing as “race” denies the entire experience of black Americans. It suggests that everything that has happened, and that continues to happen, is somehow false. And that just doesn’t make sense to me.

SECOND, SOME RESPONSES TO THE POSTING BELOW. Some amalgamated points. But before I begin, a confession of error. In my previous post I wrote “show me where the equal protection clause . . . mandates strict scrutiny. The case for that is, at least, a lot weaker . . ..” I should sharpen that a little: I think the baseline for evaluating racial classifications has to be strict scrutiny. But I’m not convinced (at all) that UM’s systems can’t satisfy strict scrutiny, or that strict scrutiny is necessarily the only test that we can use when evaluating racial classifications.

But now, back to the show:

1. Society doesn’t have to organize itself strictly along lines of fault, desert, causation, or any of the rest, at least generally speaking. If the legislature wants increase marginal tax rates to 100% and pass out cash to everyone at a certain income level, I don’t see where the (constitutional) problem is. I agree that under our system such redistribution based on race must be justified at a level that others are not. But I don't accept what Bob says, which is “There is no legitimate governmental interest in altering the statistical correlation of wealth and race.” I don’t see why not. It’s governmental policies that gave rise to that correlation in the first place.

2. Why does segregation matter to those of us who have never directly experienced segregation or enforced or supported it? Or, as Bob asks, “How is someone born today helped or hurt by discrimination occurring a generation ago?"

Imagine, if you will, a room with a hundred people, even distributed among the races. In a perfectly colorblind society, no matter what the social measure, we would expect those hundred people to be distributed more or less randomly. But we all know that isn’t the case in our society. So that means one of two things, either it isn’t perfectly colorblind, or there something about relative abilities that correlates with race. Do anyone really think it’s the latter?

The flip side is that when those social goods aren’t distributed randomly, some races are benefiting disproportionately, regardless of how long they have been in this country.

3. I re-read Morrison (the correct 14th Amendment ultra vires case, according to Bob) and I still don’t see any application for ultra vires in equal protection clause context vis-à-vis race. (The entire Amendment might be vis-à-vis private actors, perhaps. But I don’t buy that, either.) Racial classifications have never been ultra vires before now (obviously). And I don’t know of any reason why something that is permissible for the state legislature or the Congress should not be permissible for a university or school system. The only reasoning I can see for that would have to be some perversion of the old “non-delegation doctrine,” warhorse, which, aside from some bad water in the D.C. Circuit recently, hasn’t had a good year since 1937. At the least, Bob (or someone) has to explain, if racial classifications are completely impermissible for organizations other than state legislatures, why all of the school desegregation’s that followed Brown aren’t unconstitutional.

In my earlier post, I didn’t mean to suggest that opponents of racial preferences don’t have ultra vires concerns. Rather, I just think those arguments are completely divorced from current doctrine, text, history, structure, ethos, and prudence of our Constitution. At the least, the proponents must do a better job explaining why it’s appropriate, after 130 years of racial classifications under the 14th Amendment, to pull the gangplank up and tell everyone currently suffering from the effects of those prior classifications to bugger off. To wax lyrical for a minute, how many more generations of black people are we willing to sacrifice to the notion that our society is colorblind?

4. Bob asserts that the 67% of people who oppose racial preferences have failed to act until now because it is “hard finding a plaintiff with standing.” But why not use the legislatures? If opposition to affirmative action is that widespread and that deep, there's no reason why it had to wait for the courts.

5. Bob states that social betterment is in the aggregate, not in the distribution, so that it makes no difference to society whether the 1000 people who graduate from Michigan are all minorities, some minorities, or no minorities. I disagree completely. I don’t think that any society could have social betterment in any real sense of that word where it completely ignores divisions among its people, if those divisions seem to have real social effect.

6. I don’t think that “melanin emits some sort of magical aura that enhances the intelligence of those nearby.” But I do think that alloys are stronger than base metals, and that much of the critical learning that comes in colleges or universities comes through the interactions among people with different experiences.

As for whether race is always a differentiating factor in experiences: I’d like to think that it isn’t. But I suspect that if I had a twin brother, identical in every respect except the color of his skin, that he and I could attend the same schools, the same colleges, date the same women, &tc., and we would still arrive at the age of 30 with different experiences.

To borrow a phrase: race matters.

7. Finally, I can’t let Bob’s attack on the people administering the systems pass by. He asserts that they “are interested in racial preferences because they are ideologically committed to the idea that wealth is itself unfair, and that government redistribution of wealth is a moral imperative.”

I don’t know anyone associated with the undergraduate UM admissions program, but I know most (or at least a good number) of the faculty and administrators associated with UM law school’s admissions program. And suggesting that they believe, either individually or as a group, that “government redistribution of wealth is a moral imperative” is just stupid. Is this just some cute way of insinuating that the evil Marxists have taken over our schools?

8. As for defendant classes for money damages, see In re: Integra Realty Resources, 262 F.3d 1089 (10th Cir. 2001); see also Tilley v. TJX Cos., 2003 U.S. Dist. LEXIS 46. (certifying a defendant class, including potential damage awards). (I didn't have time to do more than glance at the cases; if I need to find others, I will).

RESPONSES TO LETTER. Anonymous writes back, with more responses and an admonition to me, the gentle blogger: It might be a lot easier, if we are going to keep going back and forth, if you concentrated on [writing a rule] instead of responding to everything.

Fair enough. Tonight I will write out that rule. (As Justice Scalia might say, 'you want a rule? I'll give you a rule.') In the meantime, though, please find Anonymous's responses to my posting yesterday below. (I'm in [brackets], he's in italics).

[I don't accept either premise your argument relies on. First, I don't think that every attempt to define race is, per se, racist and should be condemned as such. It strikes me as absurd to say that there is no such thing as race. I don't see why defining race is necessarily racist, it seems to me to be more of a recognition of a social fact. Second, I don't hold to the cynical view that if we left everything up to self-definition that so many people would abuse the system that it would become unworkable. I'm sure it would happen, but I have serious doubts that it would happen so much that it would destroy the system.]

Ok, try it. Take my challenge. Write a jury instruction.

[It depends on how you define harm. If harm(infliction) is equated to fault (which is the sense I took you to use it), then the comparsion to strict liability works because strict liability does not require fault. The harm(reception) equation is harder to make, but for reasons I will outline below, I believe that "actual harm" is still ongoing.]

You're confusing "fault" and "causation." A newly arrived immigrant has no causal relationship to past segregation. I've never turned down a
minority applicant for a job or admissions to an educational institution. What is the causal relationship between me and past segregation?

Everyone seems to believe that there is ongoing racial discrimination against minorities, but no-one seems to be able to find any beyond the de minimis of cab drivers.

[Actually, FRCP 23 does allow for defendant classes and they have been used before, although much less frequently than plaintiff classes.]

Of the rule allows for that. But its never done in a damages suit because of the due process implications. If you say its been used, cite a case.

[Again, I could pick fights with your assertion based on how you use "harm." But I think the larger point is this: people today still are harmed by the social disparities of America's apartheid, and, when reduced to its absurdist individual level, people still benefit (from reduced competition for social goods). I simply don't view the costs and benefits of segregation as historical artifacts--they still affect our society. So, strictly speaking, the people who benefit from affirmative action have been harmed, and continue to be harmed, by prior bad acts, and the "victims" of affirmative action still largely benefit from the bad acts of prior generations.]

Huh? How is someone born today helped or hurt by discrimination occuring a generation ago? How does a new immigrant benefit from it?

[Fair enough. But I think that every state has an compelling interest inremedying our society's prior abuses, whereever they occured.]

Compelling? I'm still at whether its legitimate. You don't seem to be able to answer: What is Michigan's legitimate governmental interest in remedying the past abuses of the government of Iowa?

[But this tangent, while fun to think about, is really just that. Opponents of racial preferences don't draw their moral or legal authority from municipal or administrative laws, they draw it from the 14th Amendment's equal protection clause. And that clause, as best I know, has never had an ultra vires component. (I might be wrong--again, specific examples?)]

See Florida Post-Secondary.

If you don't think opponents of racial preferences have ultra vires concerns, read some of the amicus briefs in Bollinger. The conservative objection to the Bush brief is that it leaves a hole which, albeit small, is large enough for ideologically committed, tenured, admissions committees to drive a truck full. The belief (which I think is correct) is that the schools are not interested in remedying past abuses or in improving everyone's educational experiences through a diverse student body. They are interested in racial preferences because they are ideologically committed to the idea that wealth is itself unfair, and that government redistribution of wealth is a moral imperative.

[People have known for many years that colleges use racial preferences]

The hard part is finding a plaintiff with standing.

[The rubber hits the road: show me where the equal protection clause (or Title VII, which mimics it) mandates strict scrutiny. The case for that is, at least, a lot weaker than opponents of affirmative action want to admit.]

1. You can't honestly be saying that strict scrutiny should be abandoned for racial preferences. Do you really want to overrule Loving v. Virginia? In the context of its passage, it seems fairly clear that the 14th Amendment has some peculiar relationship to race.

2. I don't need strict scrutiny to get there. I can do it with rational relation. There is no legitimate governmental interest in altering the statistical correlation of wealth and race. If equal protection means anything, it means the government cannot, on the basis of race, take from one to give to another simply because officials of the political branches prefer the members of one race to another.

[If I read your earlier points about ultra vires in light of your argument about the equal protection clause, then I'm left to conclude that any sort of racial classification is ultra vires. But that can't be right, either, otherwise the only thing that the Supreme Court could have said in 1954 is "go forth and sin no more." Any remedial program, under this reading, is not allowed.]

You misunderstand. I am not arguing that affirmative-action is ultra vires vis-a-vis the 14th Amendment. I am arguing that it is ultra vires vis-a-vis the grants of authority given to state universities by the states.

[But why isn't the point of what 'works' or 'doesn't work' the racial make up of the student body? That's the tool we're using to correct prior problems, isn't it?]

Because, we don't know at what student-body make-up the problem is being corrected. We don't know if we're doing too much or not enough. And more important, the people who decide the preferences have not even bothered to attempt to answer the question.

[Again, I think you're using non-delegation arguments in a context they don't fit in. One purpose of education is social betterment. See, e.g., Brown. Another purpose is learning and maximizing student achievement on campus. Affirmative action works toward both goals. . .it works because they bring a different set of experiences]

"Social betterment" is in the aggregate, not the distributional. The logic of Brown was that segregation associated a stigma with minorities which was forbidden by the equal protection clause. Assume the U. of M. will admit 1000 out of 2000 applicants next year, and that all who metriculate will receive the same educational benefit. Putting aside "diversity" for two paragraphs, factoring race into selecting that 1000 will have absolutely no effect on "social betterment." Regardless of whether the admitted class is all, half, or not at all minority, 1000 people will be educated, and 1000 will not.

But of course universities begin with the assumption that those most prepared for education will benefit the most. This is why merit is considered at all, and state universities do not simply select the admitted at random from among state citizens. If this is true, then considering anything other than merit will, in fact, reduce the level of "social betterment" achieved.

You have, heretofore, not attempted to argue the nonsense that"diversity" somehow improves the education at universities as a whole. A diversity of skills among the student body would surely improve all students' education. So would a diversity of interests or experiences. But unless you believe that mellanin emits some sort of magical aura that enhances the intelligence of those nearby it, "diversity" is not an argument for discrimination based on race.

And that, not "experiences," is what affirmative-action is all about. No-one objects to universities considering life-experience essays or seeking a diversity of life-experiences. The objection is to 20 points on the basis of skin color alone.

[But I just don't see the problems in practice the way you do. Nothing, ever, is a completely perfect bright line. One of the fun parts of working in law is trying to figure out how close to that line we can get.]

Ok. Then take my challenge and write the rule. Write down what you're going to discriminate on; how will you figure out who's in what "race," what races there are, and so forth. You don't have to plug in advantage numbers; just write down how you would go about calculating what admissions advantage you would give to different groups.

It might be a lot easier, if we are going to keep going back and forth, if you concentrated on this instead of responding to everything.

EMPIRICAL EVIDENCE? AMAZING. There are three blogs that people interested in affirmative action and the ongoing effects of segregation need to read now. One is Ampersand, with a post that begins around here; one is Ted Barlow, here; one is Mark Kleiman, here. Finally, thanks to Jacob T. Levy for the original link.

I don't think that emprical evidence alone can answer the arguments of affirmative action opponents, but it does tend to help.

ADDENDUM. In Anonymous's original email to me, he included two additional paragraphs and a line of argument that I didn't address specifically because he identified it as "personal." When he emailed me again, giving post hoc permission to post these exchanges, he asked that I address that argument specifically. Below are the two relevant paragraphs from his first email:

Below are four quick answers (there are really so many). Before the logical ones, here's a personal one. My girlfriend was a B student when she was in high-school in California. Her father is Persian. Her mother is Japanese. Both are immigrants. Because of her mother, she was classified as "Asian/Pacific Islander" by the U. of C. system. The year she graduated, an Asian applicant to U. of C. needed a B+ or better. I'll return to the personal after the logical.

*******
Back to the personal: Since California was forced to change its system, it has disclosed its prior levels of affirmative-action. In my girlfriends' year, had she been black, she could have been admitted with a C. Today, she is considering moving back to Cali. Under its post-affirmative-action system, she can be admitted to UCLA, and if she retakes the SATs, has a good shot at Berkeley.

I don't think you, or the U. of C., honestly believes that "diversity" of any kind was advanced by rejecting my girlfriend in favor of an African-American applicant. Certainly, they weren't advancing racial diversity, diversity of parental experiences, diversity of family tradition, or any such thing.

I also don't think you, or the U. of C., honestly believes that past discrimination against African-Americans should be remedied at the expense of the children of non-white immigrants.

But that is what you are defending when you defend affirmative action.

You'll notice that I did address a portion of this argument in my original response. As I said then, this is the most problematic assault on affirmative action for me, because recent immigrants of color receive the least amount of benefits (if any) from our segregationist past. The best I can do right now is a) the sui generis argument and b) the fact that other immigrant groups (i.e., Asian-Americans in California) appear to have greater social acceptance (and therefore less social harm resulting from prior bad acts against them). This isn't a particularly elegant or satisfactory solution, even for me, but it's a start.

LETTERS. I'm now in the process of going back to my earlier post (three down from this one) and inserting my replies to Anonymous's responses. His letter is in italics; my responses are in brackets.

SCHOOL DAYS, SCHOOL DAYS. Why, I remember back in the day when bringing some leaves to school was a cool show & tell. Now it turns out kids present their knick-knacks with PowerPoint and bring crack to show the principal.


POWER POINT. I just had a chance to read the 2001 New Yorker article on PowerPoint. As a sometime refugee from a product planning group of a mid-sized corporation, I say: back off. Without PowerPoint the pricing presentations would be impossible to deal with. And, as authors too often forget to acknowledge, using PowerPoint forces presenters to think about what they are going to say before they open their mouth. (Hmmm . . . I wonder if the law school owns any copies . . ..)

ANOTHER LETTER (AMENDED). I've now put my responses into this (in the brackets). I hope people enjoy reading it-- it's lengthy, and slightly Socratic for my taste, but it's also been fun. And I reserve my right to amend or withdraw my arguments-- I'm doing a lot of this on the fly -- and I'm not afraid of changing my mind. As always, if anyone else wants to join in, on one point or many, the email address is rule11-at-hotmail.com

The point isn't that finding a way to determine race is hard. The point is that there is no way of doing so that is not, of itself, racist. Try drafting the jury instruction and you'll see what I mean. You can't really support "accepting whatever . . . An individual adopts." If that were the policy, everyone would select whichever box provided the biggest boost. It would bear no relation to diversity, nor to past segregation.

[I don't accept either premise your argument relies on. First, I don't think that every attempt to define race is, per se, racist and should be condemned as such. It strikes me as absurd to say that there is no such thing as race. I don't see why defining race is necessarily racist, it seems to me to be more of a recognition of a social fact. Second, I don't hold to the cynical view that if we left everything up to self-definition that so many people would abuse the system that it would become unworkable. I'm sure it would happen, but I have serious doubts that it would happen so much that it would destroy the system.]

Strict liability forces those who actually inflict harm to compensate those actually harmed.

[It depends on how you define harm. If harm(infliction) is equated to fault (which is the sense I took you to use it), then the comparsion to strict liability works because strict liability does not require fault. The harm(reception) equation is harder to make, but for reasons I will outline below, I believe that "actual harm" is still ongoing.]

Class-action settlements are a shorthand way of handling such compensation with reduced transaction costs. You will note, by the way, that in the history of the federal rules, no class action has ever been litigated to judgment. Many have settled -but only when it became in the interests of the defendant to avoid the transactional cost of litigation. I don't believe the "defendants" here (that is, me) are willing to settle. I am not familiar with any decision certifying a class of defendants.

[Actually, FRCP 23 does allow for defendant classes and they have been used before, although much less frequently than plaintiff classes.]

With affirmative-action in education, you would compensate people who have themselves never been harmed, at the expense of those who have themselves done no harm. There is no area of the law permitting such a thing.

[Again, I could pick fights with your assertion based on how you use "harm." But I think the larger point is this: people today still are harmed by the social disparities of America's apartheid, and, when reduced to its absurdist individual level, people still benefit (from reduced competition for social goods). I simply don't view the costs and benefits of segregation as historical artifacts--they still affect our society. So, strictly speaking, the people who benefit from affirmative action have been harmed, and continue to be harmed, by prior bad acts, and the "victims" of affirmative action still largely benefit from the bad acts of prior generations.]

You say that: "I don't think that de jure segregation's disappearance before my lifetime means that the effects of that segregation aren't still being felt, and aren't still impacting otherwise "innocent" people (on any side)."

So, it is appropriate to compensate people for an unmeasurable harm experienced by their ancestors? At whose expense? Those who were not in the country when segregation was practiced? When slavery was practiced? Who were themselves discriminated against as immigrants?

Again, it is a problem of calculation. I suppose, in theory, you could, for each individual applicant, weigh the harms and benefits inflicted on their ancestors. But that isn't what affirmative-action does. A newly arrived immigrant from Kenya benefits from affirmative-action at the expense of a newly arrived immigrant from Russia. That is not a classification rationally related to the legitimate government interest of compensating for past governmental segregation.

[Unless you believe, as I do, that the immigrant from Russia, by nature of his or her skin color, continues to reap the benefits of prior social discrimination. No, not as many benefits as I do as a white male, but still more than an immigrant from Kenya could expect.]

You say that U. of M. grants affirmative-action to out-of-state applicants: "Because Michigan (at least Michigan law, and I suspect the undergrad as well) draws large numbers of students from across the country, out of all sorts of secondary & undergraduate systems."

That doesn't answer the question. The question is how it can be in the legitimate governmental interest of the state of Michigan to compensate the citizens of, say, Iowa, for past discrimination in education by the government of Iowa.

[Fair enough. But I think that every state has an compelling interest in remedying our society's prior abuses, whereever they occured.]

You say: "But isn't the answer to this question that we've lived under Bakke systems for 25 years and our politics haven't degenerated to these sorts of debates?"

No, silly. Our politics have exactly degenerated into that sort of debate. The bonuses are calculated behind closed doors to avoid the spectacle. But that is exactly what politicians presently run on. If you think candidates aren't running on racial preferences, you've never watched a local election or attended a town hall meeting in a city of any size!

[I have to say that you are awfully bold about making presumptions about my experience. In fact, I have lived in cities ranging from 5,000 to 10,000,000 and intently watched (and participated) in the politics of each. And yes, racist and racialist campaigns are a part of the fabric of many elections. But I've never seen an election turn on college-related racial preferences, and only infrequently on affirmative action programs writ large. When race plays a role in elections, it most often does so through electioneering and district-drawing or in pushing white voters to decide how many black heads it is worth cracking to make the city safer. Do you have some specific examples of cities where preferences, or, to draw the point more sharply, where debating the intensity of preferences dominated the campaign?]


You say: "I'm very uncomfortable, broadly-speaking, with saying anything is ultra vires vis-a-vis our political and legal system."

Then you should avoid ever practicing in an area that involves municipal or administrative law, because the issue of what is ultra vires for a sovereign's arm is sine qua non of that law.

[Well, I don't know anything about municipal law, and generally, I'm not all that interested in it. I have had a fair amount of experience with administrative law, and while I admit there are areas of it where ultra vires has some application, it seems to me it's usually in the context of the non-delegation doctrine, which has its own problems.

But this tangent, while fun to think about, is really just that. Opponents of racial preferences don't draw their moral or legal authority from municipal or administrative laws, they draw it from the 14th Amendment's equal protection clause. And that clause, as best I know, has never had an ultra vires component. (I might be wrong--again, specific examples?)]

Whether a state could authorize a college to discriminate based on race is one question. Another is whether any states have so authorized their colleges, and indeed (as I understand it) none have. If they had, it wouldn't have taken 25 years for opponents of affirmative-action to find
enough facts to bring a challenge.

[Sorry, I don't buy this either. People have known for many years that colleges use racial preferences--that's what Bakke was all about, among others. And while court challenges might have been difficult absent guarded facts (I suspect that the delay actually had more to do with waiting for the doctrine to be more favorable), I see no reason why legislatures would be unable to act. Again, why would knowing the intensity of the preferences make any difference?]

And in further response to the comparison to legacy preferences: No-one defends legacy preferences. Why do we still have them? Colleges keep them because they bring in money. Why is their no political movement against them? Because they are so small in effect that they are not worth it to argue over.

[Well, as a matter of fact, I think Bill Buckley defended them in the Times recently. And I agree why we still have them. But I don't see what any of this has to do with my original question, which is why they are more morally defensible than racial preferences.]

The comparison of affirmative-action to legacy preferences is, frankly, the most absurd argument presently made in defense of affirmative-action. Discrimination, as we are all well aware, is perfectly fine and dandy. It is as appropriate to discriminate against the lazy in hiring as it is the unattractive in dating. Discrimination based on race, I think, is particularly noxious. That is why we have a Title VII and an Equal Protection clause that applies strict scrutiny to such discrimination.

I see no provision of the constitution that says "Thou shalt not discriminate in a way college admissions officers find unfair." If Jim Crow is unconstitutional, that is so because of the Equal Protection clause. I see no exception in that clause that permits the government to discriminate against people who have done no harm, in favor of those who have themselves experienced none.

[The rubber hits the road: show me where the equal protection clause (or Title VII, which mimics it) mandates strict scrutiny. The case for that is, at least, a lot weaker than opponents of affirmative action want to admit. (I promised a long time ago to get to this, and I haven't yet. Maybe this weekend.) By it's very terms, the equal protection clause doesn't single out race at all, so why wouldn't discriminating against the lazy, or stupid, or unattractive, or whatever be equally unconstitutional?

Rubber hits road #2: If I read your earlier points about ultra vires in light of your argument about the equal protection clause, then I'm left to conclude that any sort of racial classification is ultra vires. But that can't be right, either, otherwise the only thing that the Supreme Court could have said in 1954 is "go forth and sin no more." Any remedial program, under this reading, is not allowed.

Rubber hits road #3: This is the problem with mixing the legal and moral arguments against affirmative action together. One (the moral argument) demands absolute: no classifications, ever. The other (the legal argument) won't permit such absolutes, at least without doing violence to every principle of constitutional interpretation that we employ.]

You say: "it's enough to say: we know that with this it works, without this it doesn't, and we'll protect it for all these other reasons. I guess I'm not sure I ultimately understand this argument. If racial discrimination is truly, absolutely wrong, then it shouldn't matter whether we are really good at it or only sorta good at it, right?"

The point is that we don't know that "with this it works" and "without this it doesn't" because we don't know what it means to "work." We don't know what level of dmissions, or diversity, or bonus is fair or compensatory. We don't know, indeed, we have absolutely no evidence at all, that affirmative-action at the U. of M.'s level "works" in any way - except that it alters the racial balance of the student body.

The point is not that the U. of M. has failed to be precise. The point is that U. of M. has not even bothered to attempt a rough approximation. Their calculation of benefits has no relation - absolutely none - to past segregation or the educational benefits of diversity. It does not even purport to.

[But why isn't the point of what 'works' or 'doesn't work' the racial make up of the student body? That's the tool we're using to correct prior problems, isn't it?]

You say: "I'm not all that impressed with majoritarian arguments on this issue. If people feel really strongly about it, get them to pass laws/referrenda/&tc. like 209."

But that's the ultra vires point. If people really want their colleges to discriminate based on race, let them pass laws authorizing it. They have not done so.

[But neither have they passed laws prohibiting it. Some may have even implicitly or explicitly endorsed it (I don't know, I haven't done research in this area). If people are really as upset about it as you claim they are, getting the laws prohibiting it shouldn't be a big deal.]

The states have passed laws authorizing the establishment of colleges, and they have specified purposes. Usually, the purpose is something flowery like the "advancement of learning" or some such. The colleges have no legal authorization to advance the goal of compensating for past discrimination.

[Again, I think you're using non-delegation arguments in a context they don't fit in. One purpose of education is social betterment. See, e.g., Brown. Another purpose is learning and maximizing student achievement on campus. Affirmative action works toward both goals.

And no, it doesn't work toward that goal because black people or Hispanics necessarily bring a different intellectual viewpoint to the classroom; it works because they bring a different set of experiences. And it is the experiences of the students, and how those experiences shape their interrelations with other students, that I think is the real benefit in the college setting. (Discriminations can't or won't understand this point, or maybe I'm not making it clear enough.)]

You say: "If people really were worked up about this, they would have done something about it."

Again, that's the ultra vires point. As long as its done in secret, as long as universities try their damndest to hide the preferences, the people can't.

[Again, I think this is just wrong. People don't need to know the intensity of the prefrences to know enough to disapprove of them, unless you're suggesting that the 67% disapproval is in fact related to that intensity. If that's the case, I dont' see what ultra vires has to do with it. Plus, I think describing anything the legislature does vis-a-vis its subordinate institution as ultra vires is abusing the term and defining it far too broadly.]

You say: "I figure that affirmative action isn't the same thing, morally speaking, as Jim Crow because its intent and results are different, and I don't know how else to judge something morally than by looking at its intent, means, and results."

Oh? I could save a dozen lives by killing you for your organs. Is it OK for a cop to plant evidence to help convict someone they know is guilty? Is it OK for someone to rob me, if they are African-American and intend to lessen the social differentiation caused by past desegregation?

I rather think there are acts which are immoral.

[I'm a lawyer, dammit Jim, not a moral philosopher. But to be clear: I wasn't suggesting that we can't know what is moral and immoral. I was just suggesting a way of evaluating that claim.

There are probably other (better) ways of judging immorality than intent, means and results. I chose those three standards because they are the easiest way to show up the differences between affirmative action and Jim Crow.

But to answer your specific questions under my own rubric:

a) No, you can't kill me for my organs because your means are far out of proportion with your ends.
b) No, because the intent and result are both bad: the cop is almost never in a position to truly know someone's guilt (it's assumptions like those that get them into trouble to begin with), and the results of such a system lead to too many false convictions.
c) Depends. You're arguging a version of Robin Hood, and I suppose I can spin out an argument where Robin Hooding is the "moral" thing to do. But I'd have to know a lot more.]

You say: "I agree; I think the most troublesome part of affirmative action is the classifying of who gets the benefits, writ large. (I'm sorry, but I don't see the problems you do with the classifications, writ small)."

Whatever you come up with on the large-scale must be implemented on the small. That's the difference between having a political theory and being able to write a law.

[But I just don't see the problems in practice the way you do. Nothing, ever, is a completely perfect bright line. One of the fun parts of working in law is trying to figure out how close to that line we can get.]

FINALLY, A LITTLE POLITICS. I'm broadly agnostic about the war in Iraq-- I'm not happy we have to do it, but I don't see many other choices. (I would be more comfortable with the President's position if I didn't think that he came into office intending to declare war on Iraq and that he is exploiting the tragedy of 9/11 as a convenient excuse.) I think most of his domestic agenda is just plain stupid (reflected by the comparative differences in quality between his domestic and foreign policy teams): non-economy-boosting tax cuts of a year ago supplemented by more non-economy-boosting tax cuts today; pander to the right whenever it's politically expedient; allowing Karl Rove to run roughshod over any semblance of a policy apparatus.

But what really burns me from his speech tonight was the quote "they will learn the meaning of American justice." For me, that summarizes everything that scares me about his administration. The meaning of American justice is not "we'll hunt you down and kill you," it is the due process of law protected by a thousand years of common law evolution. The administration's disregard for that history, and for the importance of due process in times of war as well as times of peace, is disturbing.

I don't want to push the point too far; there is a role for boundaries between the American criminal justice system and the military's need to prosecute a war. But recent suggestions that American courts must prostrate themselves to the Defense Secretary (or, in the case of Moussaoui, the possibility of removing the case from the courts to a military tribunal) suggest that the administration doesn't respect those boundaries.

EUROPEAN-AMERICANS. Three interesting essays about European-American relations: one by Stuart Reid in The American Conservative; one by Robert Lane Greene in The New Republic; one by Timothy Garton Ash in the New York Review of Books.

I don't have much to add to what these authors write: I don't think any of them get it all right (or all wrong), which is why I listed all three. My biggest reaction was to Ash's piece in the NY Review of Books: I think cherry-picking the Midwest for quotes like "Well, I guess they don't have much huntin' down there" is the worst sort of cheap-shot journalism. I've been across parts of Europe with a backpack and a smile, and if I had bothered to record my conversations they would have turned out about the same. And please, please remember: its as far from Kansas City to New York City as it is from Dublin to Warsaw. I'm not trying to excuse willful ignorance or bigotry, just explain the common posture of benign indifference.

MAILBAG. An anonymous reader responded to my earlier question: "But tell us, please, why it is so self-evident that discriminating on the basis of race is always worse than discriminating based on geography, socioeconomic status, family history, &tc?"

First off, thanks for responding. I wish more of you would. (And I know now there are more of you, after the How Appealing link. The email address is rule11-at-hotmail.com.)

Second, I'm going to try to excerpt his email without a) destroying his arguments or b) identifying him or leaking personal info.

THE QUESTION: What is so self-evident that discriminating on the basis of race is always worse than other forms of discrimination?

ANSWER #1: 1. Because there isn't any such thing-in-the-world as a "race."

[What Anonymous was getting at is the difficulty that the university, or a court, would have if faced with a situation where a white person claimed to be black, or where a governmental unit disagreed with an individual about which racial classification they best fit in.]

I don't know how courts or organizations would evaluate a contested definition of an individual's race. But I think saying "there's no such thing as race" pushes it too far. Just because courts have difficulty with a question doesn't mean that there isn't a right answer. And even if there isn't a "right" answer, that doesn't mean that we shouldn't adopt a best-possible approximation by accepting whatever self-definition an individual adopts.

(The cheap response is to tell James Byrd Jr.'s family that there is no such thing as race. I bet they would beg to differ).

ANSWER #2: Because affirmative-action in education is not rationally related to the goal of remedying past government racial discrimination.

[Anonymous had three or four arguments underneath this. First, that America's public grade and high schools have not discriminated against the racial minority groups who benefit from affirmative-action in higher eduction for more than 18 years. Second, that [i]t cannot be rational to compensate one person for the suffering of another. Third, that UM's program is overly broad because, unlike what is sanctioned in Adarand, the university's policies compensate those individuals through affirmative-action in college admissions who [didn't] suffer discrimination at the primary and secondary school levels [and whose parents did not]. Finally, Michigan might have a legitimate government interest in remedying past discrimination in the Michigan public schools. So why do students from other states benefit from affirmative-action?]

To begin with, I don't think that de jure segregation's disappearance before my lifetime means that the effects of that segregation aren't still being felt, and aren't still impacting otherwise "innocent" people (on any side). The past evils of segregation have not disappeared and I don't accept the premise that segregation affected only those in school districts that actively practiced it. By the same token, I think that the University of Michigan has a mandate to look at discrimination across the country (and remedy it, if possible) because it has been, for a long time, as much a national university as a state one. (Especially in the law school).

Finally, I don't see the problem with compensating (or even punishing people) absent fault or desert. We do it all the time in law. See, e.g., strict liability in torts and insurance in general.


ANSWER #3: Because it is ultra vires.

[For the folks at home, ultra vires means "beyond power; transcends authority." Anonymous continues, [w]hat arm of government is equipped to determine if [legitmate reasons for racial discrimination] exist?
He continues, [c]an you imagine what would happen if the Michigan legislature began a debate about the number of points to be given to each ethnic group in U. of M. admissions? He then describes a pretty horrific scenario where legislators barter votes and policy based on how they determine who gets how much preference. And he also argues some sort of non-delegation doctrine, inasmuch as these decisions have largely happened out of sight of the legislature or the public.]

I think the easiest response for the question of political instability or race-pandering is that we've lived under Bakke and its progeny--the UM systems--for 25 years without this, and I don't know why it would start now.

Also, I think saying that anything is ultra vires our constitutional system is difficult. There are definitely things that the system discourages, strongly discourages, all-but-prohibits, &tc, but there are very, very few things that it prohibits outright. And I don't know why racial classifications, which have never fallen into the latter category, would be placed there now when they never have been before, especially in light of continuing need for narrowly-tailored, small-scope remedial efforts, at the very least.

ANSWER #4: Because neither U. of M., nor any other university, has made any serious attempt to calculate the intensity of the preference.

[I confess I don't understand this argument entirely, so I'm just going to quote the provided explanation in its entirety: 10 points, 15, or 20? How many points does an African-American get? How many for a Latino? If the state were to calculate a preference to target diversity, wouldn't it have to figure out the level of benefit provided by different levels of diversity? How would the state go about doing that? How do you figure out the benefit to my education of the pigment of the boy sitting next to me? How would the state go about figuring out how many points to give based on past discrimination in education? Wouldn't it have to vary by where each student grew up? (By where their ancestors grew up?) What do either of these things have to do with giving an admissions bonus for skin color itself?]

I think you're demanding more from the system than it could give. And, frankly, more than it needs to give. I don't think that its necessary to calculate the exact benefits of diversity at a 20 points v. 15 points v. 25 points v. 10 points system; it's enough to say: we know that with this it works, without this it doesn't, and we'll protect it for all these other reasons. I'm not sure I ultimately understand this argument. If racial discrimination is truly, absolutely wrong, then it shouldn't matter whether we are really good at it or only sorta good at it, right?

ANSWER #5: Because the country doesn't want it.

[According to last week's CNN poll, 67% of the country is against bonuses in university admissions based on race. Ask yourself a question: In a democracy, why is it that every state (until recently) discriminated in a way that an overwhelming majority of every states' populace finds objectionable?]

I'm not going to argue, as some have, that the 14th Amendment mandates some form of affirmative action. By the same token, however, I'm not all that impressed with majoritarian arguments on this issue. If people feel really strongly about it, get them to pass laws/referrenda/&tc. like 209.

To answer his question about why affirmative action persists despite general disapproval: because polls measure people's views on an issue without really giving any sense at all of the intensity of those views. If people really were worked up about this, they would have done something about it (again, a la 209). They haven't thus far, and I think the simplest conclusion is that while many people are against it in the abstract, the vast majority of those don't care enough to formulate their political choices around it. If they do, they can outlaw it. But they haven't.

ANSWER #6: Because racism is immoral.

[Discrimination based on race is different than discrimination based on legacy. Do you think it should be unlawful to discriminate in favor of one's family in hiring? Do you think it should be lawful to discriminate in favor of one's racial group in hiring? Does that answer your question? He also writes: I also don't think you, or the U. of C., honestly believes that past discrimination against African-Americans should be remedied at the expense of the children of non-white immigrants.]

Regarding family preferences in hiring: I can game out a few scenarios where it should be unlawful (depends how seriously we want to take our country's commitment to "merit"). But do I think we should go through the political and social disruption necessary to pursue that? No.

Regarding racial preferences in hiring: No, absent strict remedial necessity. But I would argue that education is different. To borrow a few sentences, "[w]e must consider public education in the light of its full development and its present place in American life throughout the Nation . . .. Today, education is perhaps the most important function of state and local governments."

I would argue, briefly, that affirmative action is not the moral equivilent to Jim Crow in the context of education, and that legacy preferences are far worse. Why? Among other reasons:

1) Legacy preferences in admission act only to reward the success of the parents and to support a system that is biased against people who aren't white, male and rich. I can't think of a worse use of education, morally speaking, than continuing to support those that "have" at the expense of those who don't. The great power of the American education system is its force as an equalizer (see, e.g., the GI Bill), and legacy preferences (esp. those focused on the rich-donor subset of alums) cuts directly against that.

2) I figure that affirmative action isn't the same thing, morally speaking, as Jim Crow because its intent, means and results are different, and I don't know how else to judge something morally than by looking at its intent, means, and results.

The intent of Jim Crow was to denigrate and destroy the civil, political and social standing of an entire race. I say 'destroy,' but truth is, 'prevent from attaining' is probably more accurate. The intent of affirmative action is to ensure that the remaining ill effects of Jim Crow (and, in fairness, its Northern equivilents) are wiped out. I just don't see how those intents can be equated.

As for means: a lot of Jim Crow laws took in account people's race (but see, e.g., grandfather clauses, poll taxes, &tc), so does affirmative action. But the ill effects of affirmative action on those it "targets" are much, much less than those of Jim Crow. I don't know what the statistics are (or even if anyone has studied) about what happens to the "victims" of affirmative action, but I do know as a baseline they aren't prohibited from attending any school (or even any school of quality). Best case scenario is they go to some other good school, just not the one they really wanted to go to. Worst case scenario is they don't get into any school at all and their lives are destroyed. But I don't see evidence of that happening.

As for ends: the end of affirmative action is ensuring a diverse society where the benefits are distributed across racial lines . The ends of Jim Crow was the continuation of the Confederacy. Not even in the same universe.

(You'll notice I focus mostly on goals/means/ends writ large, because I think the moral case for/against affirmative action transcends what benefits it brings to the campus itself. But obviously there are those to consider as well.)

As for complaints about other minority and immigrant groups being shut out of UM's program:
I agree; I think the most troublesome part of affirmative action is the classifying of who gets the benefits, writ large. I'm still thinking/working my way through this. The best I can offer you now goes something like this: the treatment of African and Native Americans is sui generis in our society and in our law. As bad, and I mean really, really bad, as our treatment of Asian-Americans, Hispanic-Americans, and other ethnic groups has been, it doesn't reach the level of 350 years of institutionalized disparagement. And there also appears to be some evidence that our society, as a whole, has done a better job integrating these other immigrant groups.

I don't expect that this answer, or any of these, is wholly satisfactory. But I hope they are a start.

HOUSEKEEPING. As frequent readers (both of you) will notice, I chose a new template. I hope this one is easier to read than the old one. (What can I say? I was a sucker for the bright colors).

I'm working on figuring out how to put useful info in the grey bar at the top. (If anyone can help me decipher html, please let me know). In the meantime, compliments, complaints, criticisms, &tc. can be mailed to rule11-at-hotmail.com.

UH, JOHN, I THINK IT'S CALLED "FRATERNITY ROW." John Rosenberg finds it objectionable that the University of Virginia would create a diversity center that excludes (implicitly, he thinks) white males. "Perhaps a nice university space, renovated and handed over explicitly to minority, women, and queer students can somehow serve a "unifying function," but it might be hard to persuade straight white males of that. They seem to be the only excluded group," he writes.

The point isn't to exclude white males, it is to alter the ground rules. Throughout (almost all) the rest of UVA's beautiful campus, the ground rules are set by people who are pale, male and straight. At worst, this is a chance for people who aren't comfortable to recharge their batteries; at best, it might give some of the majority a chance to see the world from a different perspective.

PEOPLE COMPLAIN ABOUT LAWYERS RUNNING THE COUNTRY. What if Lincoln had an MBA? [Thanks to Eugene for the link.]

STUART TAYLOR'S WILD RIDE. Stuart Taylor, a National Journal writer whose work I usually appreciate, uncorks some pretty heady rhetoric today. The nub of his argument? "Not surprisingly, shockingly high percentages of their preferentially admitted students end up flunking their medical boards and bar exams." He makes similar accusations about undergraduate failure rates as well.

I say accusations because it is tough to evaluate his claim without knowing which sources he relies on. But there are a couple things to consider:

1. Professor Richard Lempert of the University of Michigan Law School published a study* of UM law graduates that flatly contradicts Taylor's assertions about the relative success of its graduates.

2. When comparing relative performances, many researchers (or, at least, people interpreting the research) fail to account for non-racial factors that may skew results. The biggest culprit among these is the family connection: students whose parents are college graduates are far more likely to be successful in college than students representing the first generation of their family in school. Because of historical (and ongoing) racial & socioeconomic disparities, this reality disproprotionately benefits white college students in the surveys that Taylor references. The more accurate measure would drill down one level further and measure students of color who are second generation (or more) college attendees against their peer group, and do the same with first generation college students. Perhaps studies would still show disparities at that level, but I suspect they would be much reduced.

*This link is to an article about the study. I'm sorry, but at this point I can't find a copy of the study itself.

As I said, I usually like most of what Taylor writes. But today's column is abrupt, and lacking in the sort of evidence he usually provides to bolster his arguments . . . [And thanks again to How Appealing for the link].

I WAS CLOSE. I said the Raiders would score 20 points; they actually scored 21. And if you take away the three touchdowns scored by the Bucs defense, then they scored 27, which is pretty close to the 24 points I guessed. So I was close. And I think it was a decent game to watch. Not a pretty one, but it's always fun to see a high quality defense deconstruct an offense. (And yes, I know Gannon didn't play as well as he could have, that the Raiders receiver dropped balls, &tc, but is it sheer coincidence they just did that now?)

SUPER BOWL ADS. A person could spend a lifetime deconstructing and evaluating the Super Bowl ads. I don't want to get into it, other than to say (as a non-illegal drug user) that I'm sick of all the ads encouraging us to realize that "illegal drugs cause teenage pregnancy, fund the war on terror, force people to vote Democratic, run little girls over, and encourage kids to shoot each other" and the like. Obviously these ads are targeted at pot users. And I agree that there are a lot of reasons why people shouldn't use pot, or, if they do, use it responsibly and treat it like any other sense-impairing drug (i.e., alcohol). But equating pot with the opium fields of Afghanistan is just scare-mongering. Most pot in this country comes from ditches, not Osama bin Laden. (As for the other deleterious effects--the same could be said for alcohol. Why not run ads about that?)

ANDREW SULLIVAN AWARD NOMINEE. Awarded infrequently for expansive unsupported rhetoric by Mr. Sullivan.

In Saturday's Daily Dish, Andrew wrote:

"The Washington Post, far more reliable than the New York Times, emphasizes . . ."

He might want to read this story. (Thanks again to How Appealing for the link.)

AND ANOTHER THING. Yes, Maureen Dowd should have made her retraction more clear, but why at this point in our history is honoring soldiers and politicians guilty, at a minimum, of high treason even a discussion topic?


ONE LAST POST BEFORE THE GAME. John at Discriminations is ranting again about the ubiquitous non sequitur. But tell us, please, why it is so self-evident that discriminating on the basis of race is always worse than discriminating based on geography, socioeconomic status, family history, &tc?

And I've been wanting to ask for a while: does John's consistent endorsement of the colorblindness principle lead him to oppose any governmental classification on the basis of race? Even if treating all races the same leads to the destruction of remedial programs directly addressing specific instances of prior bad acts by the government?

To put it another way: should the Supreme Court have just said "go forth and sin no more" instead of ordering the integration of school districts after Brown?

At what point, morally speaking, does good proactive remedial integration become evil race-based government programs? Or is it ever good?

INTELLECTUAL DIVERSITY. In an otherwise pretty funny column, George Will writes:

"In any case, the university's assumption appears to be that race or ethnicity is a reliable predictor of a person's inner landscape -- of his or her mental makeup. This assumption might seem to involve the sin of racial and ethnic stereotyping, or even the scarlet sin of profiling. However, it obviously cannot involve either, because the university is famously progressive, and hence abhors both." (Thanks to How Appealing for the pointer).

I agree with the criticism implicit in Will's argument that those of us supporting affirmative action should not justify it on the grounds that students of color should or must represent a monolithic viewpoint (for the betterment of class discussion and/or their white classmates). I've seen that happen too often, and I, too, have been guilty of making those assumptions before.

At the same time, however, I don't think that it is at all revolutionary, insulting, immoral or "sinful" to assume that students of color will bring different experiences to the classroom than white students. Because, unfortuantely, race is still a differentiating factor in our lives today.

Two kids could grow up next door to each other; their parents could work in the same jobs; the kids could attend the same schools and churches; they could participate in the same Boy Scouts Troop; they could go to the same university and the same law school, and in the end, they would still have different (maybe radically so) experiences on which to draw, if for no other reason than the white kid would never have to worry that when he got pulled over, or stopped in a store, or confronted by a policeman outside the movie theatre, that his race made a difference.

As long as race matters in this country those experiences will be different, and acknowledging those differences in an class of students is a good thing.

GEORGE "KEGGER" WILL. Also, I disagree with Will that "the only pertinent diversity in a university is diversity of thought." I don't know what he was like in college, but I'm pretty sure the value of college extends a lot further than disembodied brains in a vat.

INTELLECTUAL DIVERSITY, PART TWO. I can't speak about the undergraduate Michigan experience, but in the law school its really a myth that there are no conservative students. In fact, there are a lot of them. There is a fairly active Federalist Society club, and in all the classes I took there was always students defending a more conservative viewpoint. (I won't say that it was 50/50, or that conservative students didn't sometimes feel isolated because of their political viewpoints, but by and large every class was characterized by vigorous arguments from all sides of the political spectrum.)

INTELLECTUAL DIVERSITY, PART THREE. As for the faculty, well, there probably are not many Republicans in the UM law faculty lounge. But the faculty's scholarship represents a pretty mainstream approach to the law. There are a couple law-and-econ folks, some social science-and-the-law types, a few humanities-and-the-law people, and, of course, Catherine MacKinnon. Most of our facutly, however, are meat-and-potatos mainline legal scholars. (I mean that as a compliment.) [The webpage is down this afternoon so I'm unable to link to the exemplars, sorry.]

Of the 25-30 professors I knew, I can only think of one, liberal or conservative, who consistently broadcast his own political views and who used class as a launching pad to attack those students, faculty, Supreme Court justices, and Supreme Court opinions.

QUIZ OF THE DAY. Who was that faculty member? Fellow UM alums reading this ought to have a pretty good idea.

In fairness, he also gave some of the best advice I heard from a professor: "The key to legal reasoning isn't to tell why the case is wrong; anyone can do that. The key is to see how to distinguish the case and make your argument fit in the middle of a bad set of doctrine." (I'm paraphrasing slightly).

ON TO FOOTBALL. Bucs 24, Raiders 20. When are they going to let Art Monk and Harry Carson into the Hall of Fame?

HERE'S AN IDEA. How about a law review article comparing the discretion given courts of last resort and HoF selectors?