Affirmative Action at US Supreme

[Barry the Sprout]

Originally posted by Morgeruat: standardized testing like the SAT's and ACT's is supposed to even out the playing field for (cap)ability, to succeed, they measure intelligence, other things can and are used in the same manner to increase or decrease eligibility, ie honors society, sports, other extracurricular activities, race should not be a significant factor in choosing.

I'm not talking about simply the inherent instabilities in judging on the basis of marks - I'm talking about social differences. In general people from ethnic minorities go to worse schools, get a worse education, and are institutionally discriminated against (I know this has decreased but I strongly doubt anyone could claim it isn't still present to some extent).

Basically I agree with Thoran - it is a necessary step but not an end in itself - rather obviously. But I'm afraid I don't agree with you when you say that its not going to be needed for much longer. I think as long as we still have social discrimination going then we will need some form of "Affirmative Action". And that doesn't look to me like its going to end anytime soon. Don't get me wrong - things are getting better, they just aren't good enough yet.

[Timber Loftis]

Originally posted by Angelousss: I saw an article on this awhile back and it's not about affirmative action it's about diversity. the school had no trouble meeting the quotas but they were accepting minority students at lower standards even after they met their goals. to give an example on their point system, an outstanding essay was worth 1 pt, being minority was worth 20 pt.

Well, you're part right. It's about affirmative action for a NEW REASON. I had not read the article thoroughly yesterday, but now I have. Here's the legal primer, truly cliff's notes version, folks:

A. Normal Constitutional Standard
If the gov. wants to pass a law (any law), the constitutional test is that it is (1) RATIONALLY RELATED (a very low hurdle) to a (2) LEGITIMATE GOVERNMENT INTEREST (also a very low hurdle). Thus, so long as your law will somehow relate to your goal for passing the law, it passes constitutional muster.

B. Heightened Constitutional Standard
But, if you use a SUSPECT CLASSIFICATION (such as skin color or religious background) in your law, a higher standard applies - because we are "suspicious" when governments pass laws using such classifications. The constitutional standard then is that the law is (1) NARROWLY TAILORED (very high hurdle requiring great specificity) to a (2) COMPELLING GOVERNMENT INTEREST (also a very high hurdle, requiring a very important governmental goal).

Now, in the Michigan case, the classification - race - is "suspect" because the Court has said so for over half a century. Thus, the higher standard, the second one ("B" above), applies. Now, when trying to justify your COMPELLING GOVERNMENTAL INTEREST portion of the test, it has already been upheld that "correcting a historical wrong" *is* a compelling government interest. This case is novel because MI did not use this justification, but rather relies solely on "diversity in education," a notion dating back to the first landmark affirmative action case, Bakke (the clerk who helped the Justices write this opinion was my Con Law prof, BTW).

In Bakke, I think it was Justice Powell who opined that in some instances "diversity in education" would be a compelling governmental interest. This case will test that notion, perhaps, as MI has used only "diversity" and no other reason to justify its compelling governmental interest.

Now, note that EVEN IF the Court determines "diversity" is compelling, the law will still be struck down if it is not NARROWLY TAILORED to accomplishing the goal of "diversity." Thus, as you can see, these "suspect class" type of cases (of which affirmative action and discrimination both use the same test) are very very difficult to succeed with.

Oh, and also note that the Court may weasel out, as it often does. Here's how: the Court notes that if the law is not "narrowly tailored" then it will fail the test whether or not "diversity" is a compelling interest. Then, the Court may go on to find that in fact the law is not "narrowly tailored." In that instance, it will not even need to decide whether "diversity" is a compelling interest, so it may choose not to decide that issue (this happens when the justices really can't come to an agreement).

Okay, lecture over. Remember your midterms next week.

[ 12-03-2002, 12:14 PM: Message edited by: Timber Loftis ]

[Bardan the Slayer]

Originally posted by Barry the Sprout: A lot of crap gets talked about affirmative action and I think some of the people here have got twisted views of what it is. Affirmative action is not "discrimination under another name", or "giving seats on the basis of race not ability". That is all complete nonsense used as quick slogans by its opponents. They are catchy and no one could possibly object to them. Thats not what its really about though. Lets look at it this way. How do you decide on who gets a place at University? Say you have two students in front of you. One of them has good grades and one of them has good, but not quite as good as the first ones, grades. Easy choice? Nope. University places are given for the most part on the basis of ability - not marks. I think we should all recognise that marks mean pretty much nothing when looked at over a large scale. Marks depend on the kind of school you went to, who marked your work, whether or not you had private tuition. To a large degree they are governed by ability, but the two do not always correlate. What am I getting at here? Well - that quite a lot of the time universities pick the more able candidate, not the one with the best marks. So how can you tell who is the more able candidate? Basically compensation has to be made. I don't think this can be considered discrimination, it allows a better representation of the ability of the two candidates not simply how they have reacted in the environments they have been put in. Lets look at it this way. If we had no "affirmative action" the number of black people at universities would fall drastically. Why is this? Are White people naturally cleverer than black people? Why are they under-represented in university? Are you sure that it has nothing to do with the respective environments they come from? You cannot say that affirmative action makes it an uneven playing field - affirmative action evens it out!

Barry, that is the whole point - people should be judged on their ability, but Affirmitive Action goes against this very principle. You post has merit when you say that surely a person from a disadvantaged background should be looked upon in a somewhat softer light than a person who had a totally stress-free childhood, when it comes to Uni placements. However, Affirmitive Action makes the assumption that being black is in itself a disadvantage that has to be compensated for, and that all disadvantaged people must be from minorities.

This is not only insulting to black people ("Oh, you couldn't manage it on your own - we'll give you the place anyway because you didn't have many toys when you were a child"), but also works against disadvantaged white people. There are a great manby white people who grow up in poverty in bad neighbourhoods. However, because of affirmitive action, if this person went up against a black person in a selection process, the black person would automatically get more consideration.

All affirmitive action does is engender resentment among ethnic groups, because people (rightfully) get annoyed at jobs and placements being given to less suitable candidates based on their skin colour. It also leads to a continuance of a dependance culture, where the minorities think they deserve places to be givenm to them, rather than having to earn them. Rather then smoothing out any differenceas between the ethnic groups, it continues to highlight them and make them an issue.

I think as long as we still have social discrimination going then we will need some form of "Affirmative Action".

This is the whole problem - Affirmitive Action is social discrimination - against the ethnic majority. It is insulting to the majority and the minority, it engenders hatred and is socially devisive in a way that a meritocracy - you get the job/placement based on your skill and ability, not your skin colour, shoe size, hair length or sexual preference - would never be.

Homosexuals make up about 10% of the population if I remember right. I would expect a homosexual to be given *exactly* the same shot at *any* job as a straight person, and for them to be judged on their ability, not their sexual preference. omosexuals make up about 10% of the population, then I would expect to see about 10% of the workforce being homosexual.

This is not the situation that quotas and legalised discrimination causes - I have heard of cases that some quotas have stated a company must have a 50% ethnic minority workforce, despite the fact the state has only 15% ethnic minority population. Is this fair? Is this giving everyone the fair playing field they deserve? Or is it making the judgement that all blacks/hispanics must be disadvantaged, and because they are inherently worse than white people, they must be pushed into jobs, rather than relying on their own ability?

Affirmitive Action assumes people from ethnic minorities are inherently inferior and need help to get jobs that the majority have to rely on their ability to get. In this way, AA is actually more racist than the problem is is intended to solve.

I am all for people getting help and consideration based on their backgrounds, but jobs and Uni placements should be based *solely* on ability. If you have SAt tests used to determine *ability*, then it is racist that an ethnic minority candidate has points added onto his score just because his skin is black, yellow, brown, pink or blue.

[Cloudbringer]

Originally posted by Thoran: Here in the US the application of Affermative Action principles very often results in thinly disguised quota's... that's why you're reading the negative comments. In an ideal world affermative action would level the playing field but this ain't an ideal world, and human administrators and HR people have to figure out how to IMPLEMENT the idealistic concepts that AA contains. Generally being no-nonsense people, they look for solutions that can be actually used (and are affordable) and this often leads you to the application of quotas (just about the simplest way to approximate the goals of AA with minimum subjectivity and maximum affordability/efficiency). That's just how it ends up working out. from there it trickles down: A Gov. Administrator is told he needs to fairly/equatably dole out building contracts... he looks at population data and 15% of his population are minorities, so he takes the easy route and dictates that 15% of contractor employees must be minorities. When a contractor finds out he can't bid on a job because he only has 5% minority representation, what does he do when two guys apply for a job, one white, one minority? What CAN he do? On the flipside, without dictating a 15% minimum, how could the Government administrator insure that minorities have a equal opportunity to bid on or work on goverment contracts? Tough problem we're discussing, and there's no easy solution. Everyone complains about how quotas are bad (and they are), but for many circumstances they're the ONLY way to satisfy the requirements of Affirmative Action, and IMO AA was a necessary step... necessary to "shake up" the system. The real question is "when is enough enough?"... and I think that we're pretty much at that point in most places.

Very nice post, Thoran. It is, indeed, a complex issue and no one side is completely right, IMO. I think you've covered some of the major problems involved with implementing the program, though.

I know that if you put a person up for a position via the Afirmative action route, and one who is not covered by afirmative action, that the person with afirmative action backing will automaticly be assumed to be the inferior candidate. Why? because they do not have to meet the same criteria. Their scores (the method for assessment) can be lower. so afirmative action also engenders a stereotyping too. And employers will not give the afirmative action person equal respect because it was not earned, it was apportioned by a government program.

Afirmative action just perpetuates the myth that minorities (other than asians) cannot succeed in the fair market place.

Edit: I am basing this solely on what I have seen in the IT industry. I really don't know how any others work.

[ 12-03-2002, 02:13 PM: Message edited by: MagiK ]

[Sir Kenyth]

Originally posted by Barry the Sprout: quote: Originally posted by Morgeruat: standardized testing like the SAT's and ACT's is supposed to even out the playing field for (cap)ability, to succeed, they measure intelligence, other things can and are used in the same manner to increase or decrease eligibility, ie honors society, sports, other extracurricular activities, race should not be a significant factor in choosing.

I'm not talking about simply the inherent instabilities in judging on the basis of marks - I'm talking about social differences. In general people from ethnic minorities go to worse schools, get a worse education, and are institutionally discriminated against (I know this has decreased but I strongly doubt anyone could claim it isn't still present to some extent).

Basically I agree with Thoran - it is a necessary step but not an end in itself - rather obviously. But I'm afraid I don't agree with you when you say that its not going to be needed for much longer. I think as long as we still have social discrimination going then we will need some form of "Affirmative Action". And that doesn't look to me like its going to end anytime soon. Don't get me wrong - things are getting better, they just aren't good enough yet.[/QUOTE]I understand about minorities generally getting less quality education, but where do you draw the line at what's discrimination? Using that logic, the wealthy are biased because they can afford the best education and have more resources for their childrens welfare. Does this make those from less wealthy families discriminated against? Do you allow the well to do no advantages? Isn't that discriminating against them? It's a blurry line!

[Cloudbringer]

Originally posted by Morgeruat: standardized testing like the SAT's and ACT's is supposed to even out the playing field for (cap)ability, to succeed, they measure intelligence, other things can and are used in the same manner to increase or decrease eligibility, ie honors society, sports, other extracurricular activities, race should not be a significant factor in choosing.

You'd think so, wouldn't you? It is pretty complicated on both sides.

I always thought that everyone had an equal shot at things, til I started working at a University. Did you know we have 'targeted' funds that have higher stipends for minorities? The programs I work for have a large number of minorities applying but the kicker here is that most of them are foreign students and don't qualify. The targeted awards are for US citizens. And being an Asian American doesn't qualify you for these funds. Apparently Asian Americans (as a demographic) have no trouble winning scholarships and other financial aid (or so you have to believe since they aren't eligible for the 'target' monies.)

What opened my eyes all the way was a faculty hire in the Spanish Department about 10 years ago. They had many qualified candidates but Affirmative Action told them they needed to 'diversify' the program so they had to hire the only black applicant. She turned out to be the most inept and personally odd faculty member they'd ever dealt with. I witnessed her bizarre paranoia the year they decided to let her go instead of granting tenure. She had not published ONE article or piece of scholarly writing in her 5+ yrs at the University but supposedly had a 'book' in progress. She was so worried her colleagues might 'steal' her book in progress, she hauled a luggage cart around with her (the manuscript was in a bag on the cart) so that nobody could take it from her office or home! More to the point, intellectually and administratively she was a nightmare. The department really had no choice but to let her go and in the end, she sued, claiming racism was responsible for her not being tenured. I can assure you, it was not the reason they let her go and in fact, 'diversity' was the reason she stayed past the first 3 yrs! Nobody in the program dared to say she wasn't pulling her weight for fear of being accused of racism!

(edit: just wanted to note that several outside reviewers looked at her tenure case and read her 'manuscript'. We had a horrible time getting anyone to agree to do it, too. All but one (a friend of hers) came to the conclusion that her work was hardly satisfactory for a student, nevermind a PhD looking for tenure. The one who liked her work admitted that it would need 'extensive' re-working before it could hope to be published.)

On the flip side, I personally was turned down for a job I was equally qualified for, in favor of a male candidate. Not only do I know this because I know the other guy and actually taught him as a Teaching Assistant, but I heard it from the lips of the hiring faculty member. He was discussing his 'issues' with hiring women with some of his colleagues one day. Seems he was of the opinion that unmarried women were a bother because they 'just go off looking for husbands or marry and leave' while married women were as much a pain because 'they get pregnant or their husbands get better jobs and they move'. He further indicated that in general a man was more entitled to the work as he 'has a family to support' and this one did. The ironic part of all this is that the guy they hired had to take leave of absences at least three times that I am personally aware of because he and his wife had 3 more kids after he was hired and his wife spoke no English. She insisted he stay home to help each time a child was born! So he was out for several months worth of time each year of his first 3 yrs at the job! Let me tell you, I didn't take half that much leave from my job during that time!! LOL

I've heard the committees that do faculty and staff searches complain bitterly about being forced to hire someone they didn't find qualified. I have also heard from insiders about qualified women candidates being overlooked because there was a shortage of men in the particular field (such as secretaries and clerks) Diversity, it seems, goes both ways, law or no law!

[ 12-03-2002, 02:36 PM: Message edited by: Cloudbringer ]

[Bardan the Slayer]

Originally posted by Cloudbringer: [QB]On the flip side, I personally was turned down for a job I was equally qualified for, in favor of a male candidate. Not only do I know this because I know the other guy and actually taught him as a Teaching Assistant, but I heard it from the lips of the hiring faculty member. He was discussing his 'issues' with hiring women with some of his colleagues one day. Seems he was of the opinion that unmarried women were a bother because they 'just go off looking for husbands or marry and leave' while married women were as much a pain because 'they get pregnant or their husbands get better jobs and they move'. He further indicated that in general a man was more entitled to the work as he 'has a family to support' and this one did. The ironic part of all this is that the guy they hired had to take leave of absences at least three times that I am personally aware of because he and his wife had 3 more kids after he was hired and his wife spoke no English. She insisted he stay home to help each time a child was born! So he was out for several months worth of time each year of his first 3 yrs at the job! Let me tell you, I didn't take half that much leave from my job during that time!! LOL

LOL! If ever thereb was a case of poetic justice, this is it. Mr Employer got what he deserved, I reckon [img]smile.gif[/img]

[Timber Loftis]

Sir Kenyth:

Race is a protected class, income level is not. Discriminate against the rich? Happens all the time. Ever see the US tax code? Different income levels pay different taxes.

Not any class you can dream up deserves equal treatment. Statutes discriminate based on classification all the time, using such classes as: polluters, gas-guzzling car owners, banks, attorneys, mothers, fathers, dead persons, lenders, children, married persons, etc ad nauseum.

Unless you mention something that is or should arguably be a protected class, it's not comparable to the race situation.

[Cloudbringer]

Originally posted by Bardan the Slayer: LOL! If ever thereb was a case of poetic justice, this is it. Mr Employer got what he deserved, I reckon [img]smile.gif[/img]

I know! Makes me chuckle every time I tell that story to anyone!