Tuesday, June 25, 2013

Supreme Court to Fifth Circuit - Try Again On Affirmative Action


Clarence Thomas's concurrence is definitely worth a read.  When you reach the point where he concludes that liberals trying to give extra educational opportunities to Hispanics and blacks is akin to the argument that slavery was good for blacks, I would suggest that perhaps he has gone so far with his analogy that he has divorced himself from reality.

 I mean, imagine that the NBa devised a program to get more white players into the league.  (For example, if your team is a top 100 college team based upon RPI, your top 2 guys make the NBA.)  Now, can you criticize this program for being race based?  Yes.  Should you really focus on the great harm that it is doing to the white guys who draw NBA salaries as a result?  Are they stigmatized?  Are their lives and the lives of other white people far worse because they are getting NBA jobs?    Are the arguments for this solution "the same as those made for segregation"?

Come on.  I guess we can reach the point in legal arguments and legal theory where we simply lose all track of the truth.  The truth is, segregation and slavery were institutions designed by white people to harm minorities.  Affirmative action is designed to assist minorities and help them lead better lives.  Were disingenuous arguments made by segregationists claiming that slavery and Jim Crow "helped" blacks?  Certainly.  But those arguments were never seriously made.  The Jim Crow folks were not trying to create black leaders.  They had no concern over whether black people felt better being grouped together - they just wanted them grouped together.........away from white people.

Now, the true problem with Affirmative Action is that over the years it has not focused on the things it was designed to fix - 1) some groups had traditionally been discriminated against intentionally; and 2) some people are disadvantaged and need a "leg up" to help them escape their family's terrible status in life.    What we see now far too often is (actual example) the lawyer daughter of a two-doctor family is immediately snapped up by the government for a job because she fits into a hiring criteria.  Is there any evidence that she or her family have been intentionally discriminated against?  No.  That she is disadvantaged and needs a "leg up"?  No.  Yet she fits into a box and gets extra credit versus, say, a white male kid whose dad makes $25,000 a year and whose family lives below the poverty line.  Similarly, I recall a business executive speaking to a law firm and telling us, "When I hire, I say, "Go out and get me 5 black people to interview so I can hire 1 or 2."  Those are the sort of comments that cause the then-disadvantaged group to cringe.

That is the problem with Affirmative Action - it has ceased to be narrowly drawn to achieve a worthwhile goal.  Diversity is a worthwhile goal.  But someone who grew up rich and drives their dad's Porsche isn't diverse, just because they are a minority.  Schools need to truly look at the person and the life they have had to overcome before handing out extra points. 

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