Left2Right

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Posted by: oliver

If "the market" in which companies compete were like an actual market in the public square, then very simply it's the shoppers who choose what and from whom they buy from among the options available. Vendors may be providing goods and services only to buyers, but they are providing a choice and an option to everybody. I think that understanding in play when licenses to vendors are issued. I also think that understanding is in play when we allow ads to pollute the beauty of the public byways, radiowaves and mental space, because they are providing something for everybody--a choice, an option. Likewise the dollar price beside the catalog item is implicitly an antidiscrimination statement: Absent any fine print restrictions about shipping charges or black-out dates, it's false advertising. If that universal option isn't there, then we shouldn't allow the ad or the license to operate in the marketplace.

Posted by: oliver | Dec 25, 2004 1:06:02 PM

Posted by: oliver

I meant: "Absent any fine print restrictions about shipping charges or black-out dates, it's false advertising TO EXCLUDE OR CHARGE EXTRA TO ANYBODY."

Posted by: oliver | Dec 25, 2004 1:07:46 PM

Posted by: oliver

I think choice/option/opportunity are inherent to our idea of property too. If it's my car, I get to drive it. Only the police get to boot it--and I don't know the law but I wouldn't be surprised if that were construed as a form of "seizure," though the physical thing we think of as the property hasn't gone anywhere.

Posted by: oliver | Dec 25, 2004 1:12:58 PM

Posted by: D.A. Ridgely

Well, yes, but if storming the castle of absolutist libertarianism is your mission, I think you’re going to find it mighty lonely once you get inside. If there are any absolutist libertarians in the sense you suggest, I don’t know any. (“Hell yeah, Don, if a barking mad lunatic wants to buy himself a tactical nuclear weapon, I say it’s none of the state’s business to stop him! Twelve year olds wanna buy crack at the local drug store? What’s the problem?” Yeah, sure; the Cato Institute and Reason Foundation are just swarming with such folks.)

And yes, property in any seriously useful sense is a creature of the state; and yes, the common law is filled with the likes of the common carrier doctrine, constructive easements, etc. Of course, those doctrines arose out of recognition, in the first case, that such ‘public’ facilities and services, though privately held, were effectively monopolies and, in the second case, from a theory of real property that held that all land was ultimately owned by the crown, which could bloody well parcel out rights any way it saw fit. (A brief history of Anglo-American property law: William gets screwed in France, so he and his buddies go off and invade England. They win, but they’re much better at fighting than farming, so William subdivides. His buddies do the same thing. Finally, this ever dwindling ‘bundle of rights’ makes its way down the social food chain far enough to people who actually know how to milk cows and raise crops. Feudal incidents (i.e., taxes) ensue. Peers and nobles figure the crown is taking too big a cut (hmm, that sounds familiar), and slowly whittle away at the terms of the original arrangement. Land becomes freely alienable, clever lawyers figure out how to devise Blackacre to A for the use of B – “Hey, we’ve just invented trusts!" Etc., etc. One could just as easily make a case for the notion that the major trend of modern Western civilization and law has been one of wresting more and more private rights away from the state or, as I have argued elsewhere, a shift from a status driven society to a contract driven society. Unfortunately, we seem to be moving back to a status obsessed culture where one’s rights are driven by whether one is a tenant or employee or member of a protected minority, etc.

Coase and the Law & Econ crowd have dealt with most of the bordering property issues fairly well, I think. Currently, the state prohibits certain sorts of discrimination while encouraging and actually participating in certain other sorts. Since I believe markets would effectively diminish the concrete harmful effects of private discrimination to the point where it would have a de minimus impact on the overwhelming majority of individuals, I would prefer that approach to one in which, ceteris paribus, the state became ever more increasingly involved in private transactions. Whether, at the end of the day, one does or does not trust government power goes a long way to determining whether one is a left-liberal or a libertarian-conservative, even among us non-absolutists.

I can’t answer your diagnostic test because I don’t know how much unjust discrimination or what sort. At some point, my sense of justice in opposition to discrimination would override my sense that a maximally market driven society maximizes general utility; but if the question is merely would I tolerate any unjust discrimination, however minimal, for a whopping big improvement in general utility, you bet. Rawls was a chicken. If the odds were a million to one against me being on the short end of the stick and the payoff for the million minus one was a huge increase in overall utility, it would be irrational not to play the odds. The professorate in Cambridge is understandably filled with risk adverse types, but they just might not be the apotheoses of rationality they imagine.

So, as much as it may be easy to be sympathetic to antidiscrimination measures under some circumstances, I hardly think one needs to be a property absolutist to question whether in any particular case they are an appropriate solution, let alone the best available solution or even a likely successful solution given humanity’s lamentable propensity to pick on each other for absurd reasons.

I await with bated breath the likely comments from others that I am a clearly not-so-closeted racist, sexist, etc.

Posted by: D.A. Ridgely | Dec 25, 2004 2:00:25 PM

Posted by: oliver

Moral certainty is more elusive for me regarding equal opportunity of employment. It's too bad for me and the world if I'm a sexist, racist ideologue, but I don't think I should have to negotiate face-to-face everyday all day long in the barely profitable shop I own with somebody that I won't warm to without stressful work-delaying arguments and/or years of extra hours devoted to therapy. It seems to me that a large part of the effective operation of an organization is people getting along with one another, and to a certain extent we just get along with who we get along with. To a large extent it's the fault of the schools, our families, society, genetics and historical accident that we aren't each more tolerant and sociable than we are. I won't say a workplace can't teach or that society has no right to impose a curriculum there, but I think the workplace is only very distantly secondarily a Maoist reeducation camp and justifiably I think it's primarily it's about individual, group and societal survival. I'm not sure, but I think society might be cutting off its nose to spite the face if it ceases to permit entrepreneurship by intolerant and hard-to-get-along-with people.

Posted by: oliver | Dec 25, 2004 2:13:53 PM

Posted by: J.M. Harlan

A statute banning race discrimination enacts into law a contested moral notion: that racism is bad. Romer notwithstanding, that isn't a sufficient objection to such a statute: it's perfectly alright to legislate moral notions.

Whether we should do so, however, depends on our confidence in the moral notion, the harm if it is right and we do not legislate it, and the harm if we are wrong but do legislate it. Herzog distinguishes (1) labor markets and public accommodations, (2) other non-state discrimination, and (3) unacted-on racist views.

The harm if "racism is bad" is a correct moral notion but we don't legislate it is greatest in (1): that, I take it, is what Herzog means when he says "everyone needs . . . access" to employment and public accommodations "on equal terms." And it is less with respect to (2) because the degree of racist control of employment and public accommodations (jobs and hotels) is much greater than over intimate associations (churches, dinners, and weddings).

So far so good for Herzog. But then, with respect to (3), he introduces a new idea: "This, for me, is a crucial example of a political struggle the state should have nothing to do with." Maybe he just means the effect of unacted-on racist views alone can't ever be so harmful as to justify state intervention. That would be consistent with his earlier argument.

I think that to oppose an antidiscrimination statute of the sort Herzog argues for, one has to argue uncertainty about the morality of racism. A speech-is-better argument won't work because, if the law fails to include the statute, it isn't being neutral -- it's embodying the racist view.

But one might also read Herzog's statement re: (3) as indicating disagreement with my claim that legislating moral notions is okay. If you don't think that legislating moral notions is okay -- that the debate over racism "is a crucial example of a political struggle the state should have nothing to do with" -- then you also should oppose the statute Herzog defends.

Posted by: J.M. Harlan | Dec 25, 2004 4:45:58 PM

Posted by: Don Herzog

Mr. Ridgely: Look, if someone sneers at you as a racist or sexist, we shall politely ignore them or ask them to pipe down. We are trying to see if the blogosphere permits an ongoing thoughtful discussion. So let's not invite in the name-callers.

Since we have no social experience of the free market regime you'd defend, we have no knockdown evidence on how the market would go. I wouldn't dream of enlisting the experience of the South under Jim Crow legislation as evidence that markets don't work. On matters like this -- you might recall my earlier confession that I'd love to see some jurisdiction experiment with Kemp's enterprise zones -- I am big on federalism and experimentation.

Meanwhile I have known people who will go to the wall defending that absolute conception of property. And I think commenters here have complained that various kinds of legislation violate property rights. All I wanted to do is suggest that maneuvers like that are standing in for unstated lines of argument.

J. M. Harlan: I think "legislating moral notions" is too blunt an instrument to help. We prohibit murder because it is a grievous harm, and that makes it profoundly immoral. We do not prohibit lying to escape an unwanted social invitation, even if we agree the dishonesty is immoral. Morality is neither necessary nor sufficient for state action. Romer doesn't say the state can't legislate on the basis of morality; it says that "bare animus" is an unacceptable basis for legislation. While I can't think of a Supreme Court opinion that clearly makes the point, it seems easy enough to distinguish moral condemnation from bare animus.

Posted by: Don Herzog | Dec 25, 2004 6:38:37 PM

Posted by: Mark

One might add, to Herzog's description of Roemer, that not only it does not address the broad question of legislating morality, it does not close the book on bare animus, either. Roemer is part of the tradition of cases that goes back to Stone's famous footnote 4 that the the equal protection clause of the constitution ought to applied more vigorously when the case involves "discrete and insular minorties."

Posted by: Mark | Dec 25, 2004 7:18:03 PM

Posted by: D.A. Ridgely

Mr. Herzog:

I didn't mean to imply I expected such comments from you, the other authors of the blog or most of the other commenters, and I certainly wasn't inviting such comments. There is, however, an unfortunate tendence among many in the blogosphere to pay too little to what someone says and comment on what they take him to 'really mean.'

Anyway, I agree: by all means let's experiment. Indeed, some folks on my side of the street are attempting to do just that with the Free State Project. (Being a classic free-rider, I'm watching carefully from a distance. Besides, it's cold in New Hampshire in the winter.) Alas, power is rarely yielded voluntarily and the government is already well entrenched, so I'm rather pessimistic about any realistic opportunities for serious experimentation. Still, it's nice to hear anyone who self-identifies as a liberal to put in a kind word about federalism, and I hasten to note I don't mean that snidely at all.

Posted by: D.A. Ridgely | Dec 25, 2004 7:52:07 PM

Posted by: Don Herzog

Federalism took a hammering on the left in the '50s and '60s, when it lapsed into a defense of Southern state-sponsored racism. But surely there are solid reasons for various sorts of lefties to champion it. Participatory democrats will like it for what the Europeans call subsidiarity, keeping power as close to the local unit as possible. Communitarian types (not I, said the little brown bear) will like it for permitting (benign?) local variation. Liberals indebted to Dewey and other pragmatists, like me, will be keen on learning what we can about "facts" and "values" alike by seeing lots of experiments. Just as the feds have permitted some experimentation with AFDC, keeping some federal floor in place, so too they could well do with the regulatory regimes inspired by Title II and Title VII of the Civil Rights Act.

Posted by: Don Herzog | Dec 25, 2004 8:07:24 PM

Posted by: Mona

Dear Don Herzog: Your confusion can be easily cleared up by reading Richard A. Epstein's Forbidden Grounds: The Case Against Employment Discrimination Law. On pp. 83-86 he deals fulsomely with the common carrier doctrine, and starts by observing, as a commenter here has, that the doctrine addressed monopoly situations.

An anecodote from my own professional experience: in the 90s I was in a law partnership in Midtown Manhattan with the founder of the firm, who is 100% gay, by his own description. The other partner was a socially liberal het. The three of us agreed on all issues important to our personal lives which facilitated working together for 70 hours each week.

Now, in NYC the odds were slim to none that anyone applying for a position as our support staff was a member of the Jerry Falwell brigades. But, had such a person applied, we would not have hired them, no matter how qualified. Had we hired them unknowingly, and their disapproval of one or any of us manifested, we would have fired them. (C'mon, we are lawyers, and know how to do that while keeping our @sses covered legally, as does anyone else with reasonably competent counsel.)Do you think that would have been wrong?

Posted by: Mona | Dec 25, 2004 9:36:45 PM

Posted by: Don Herzog

I confess I have read Richard's book. He knows tons of common law, one of the things I like and admire about him, and it has been years since I have worked hard on those sources, but, well, I think he's wrong.

There are good reasons to treat teeny workplaces of your kind differently from larger ones, and of course Title VII doesn't pretend to cover antipathy to members of the Falwell brigades. The dominant paradigm of american labor law remains at-will employment, right?

Posted by: Don Herzog | Dec 25, 2004 9:51:33 PM

Posted by: D.A. Ridgely

Well, insofar as at-will employment remains the paradigm, I don't think we have the left to thank for that. (Not a dig at you, mind you.)

The fact is, we treat employment contracts in terms of the status of the contracting parties. Little or no constraints on the employee or job seeker to quit without notice or not apply in the first place, increasing burdens on employers to the point where those of us who work in what Jefferson thought "a talkative and dubious profession" are required to advise employers on the legal vagaries of job interviews.

Now, I certainly don't want to constrain the liberty of the prospective or current employee, but I would like to know what sort of argument as persuasive as the common carrier example can be mustered to justify the notion that X must hire Y if he only dislikes him for certain specified bad reasons but not for any other bad reasons.

Posted by: D.A. Ridgely | Dec 25, 2004 10:05:50 PM

Posted by: Don Herzog

I'll think about that some more, but (it's late, I'm tired, &c) the instant unthinking answer would be: bad reasons that are idiosyncratic or not all that widely shared don't significantly disadvantage the applicant; she can go elsewhere. Bad reasons that are socially entrenched do disadvantage the applicant.

As to at-will employment and the left, everyone I've ever asked who teaches labor law reports the same experience I have when I give glancing attention to these issues in the classroom. Overwhelmingly students are astonished to learn that it's permissible to say, "I don't like your face, you don't get the job," or, "you're fired! why? 'coz I feel like it." This goes for students on the right, students on the left, students in the center, students with no particular politics at all. They literally don't believe it. And as to what we have the left to thank for, I feel glum on once again encountering the specter of the Master Social Planner who relies on an all-powerful, all-knowing, all-benevolent bureaucracy to engineer Sound Social Outcomes. I am not like this. I don't know anyone like this. Really. And I have no more sneaking affection for that repulsive figure than you do.

Posted by: Don Herzog | Dec 25, 2004 10:18:02 PM

Posted by: J.M. Harlan

It does not seem easy to me to distinguish moral condemnation from bare animus, which is why I think Romer holds that moral justifications cannot support differential treatment. On any distinction, the law in Romer is no more based on bare animus than are antidiscrimination statutes.

One might say that moral condemnation applies to conduct or views, while animus applies to persons. But Romer and the antidiscrimination statutes cannot be distinguished in this way. In Romer the statute clearly was rationally related to moral condemnation of homosexual conduct -- after all, homosexuality is a good proxy for homosexual conduct. So if only animus so limited -- moral condemnation of persons -- were prohibited, Romer would have been decided differently. But moral condemnation of conduct or views, too, is forbidden.

One might say that moral condemnation is weaker than animus. So differential treatment based on "really strong" moral condemnation is unconstitutional. But surely the moral condemnation of racism expressed by antidiscrimination laws is as strong or stronger than the moral condemnation of homosexual conduct expressed by the relatively mild law in Romer.

One might say that moral condemnation is tied to consequences, while "bare" animus is not. But then moral condemnation is an adequate justification because there is more than morality at work: there are also the bad consequences.

Neither of Herzog's examples is on point. Murder can be criminalized because it is not only immoral, but has bad consequences also. And it would be bad to punish lying to escape dinner not because doing so would be legislating morals, but because the harm is so small. (The reason it's bad has to do with the nature of the consequences, not the nature of the putative justification for punishment -- its being morality- as opposed to consequence-oriented.) An on-point example would be a case of something that it would be bad to criminalize because the only reason for criminalizing it is moral condemnation.

In any event, this all stems from the possibly erroneous suggestion I made that Herzog's opposition to laws against unacted-on racist views was different from (what I suggested might be) his degree-of-monopoly distinction between labor markets and public accommodations on one hand and intimate associations on the other. Since the degree-of-monopoly distinction is sufficient, my criticism is minor.

Posted by: J.M. Harlan | Dec 25, 2004 11:54:07 PM

Posted by: Bret

Don Herzog writes: "But surely there are solid reasons for various sorts of lefties to champion it [federalism]."

Don left pragmatism of the list of "solid reasons". Now that the Republicans control the government, federalism is one of the better ways for the left to preserve and extend their ideals in the blue states.

When the Republicans were the minority party, they sure seemed to like the idea of federalism a lot. Now that they're the majority party, they seem to have cooled off on the concept. Democrats didn't seem all that hot on federalism when they were the majority party. Now that they're not, I suspect they'll embrace it.

Fiscal responsibility is similar. The minority party is usually all for fiscal restraint. After all, the money won't be spent on their favorite projects. The majority party usually likes big government. We've seen this switch from the Republicans being the party of fiscal restraint to the Democrats being the party of fiscal restraint as the Republicans gained control of the federal government.

Posted by: Bret | Dec 26, 2004 2:15:44 AM

Posted by: Jim Hu

I'm not a lawyer, but it seems to me that Romer v. Evans (that's what you guys are talking about, right? I had to look it up to recall the coverage of the case) isn't about whether or not one can legislate morals. From my understanding it is a restriction on legislation that selectively deprives a particular group of some right (in this case to win passage of local anti-discrimination ordnances, banned and overturned statewide by Colorado Amendment 2) if that action fails the test to "bears a rational relation to some independent and legitimate legislative end". The Court held that "the Amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit."

So the lawyers here can correct me, but it seems that this is not legislating against the animus...it's saying that the Amendment 2 supporters failed to convince the Court that there was a legitimate purpose for the Amendment, and that as far as the Court could see, animus was the only explanation. It seems to me that a number of other reasons would also fail this test, whether or not the motivation is based on animus. Indeed, I would hope that Romer would be decided the same way even if the Amendment 2 people had convinced the court that the Amendment was motivated by "tough love".

However, I believe that Prof. Herzog is asking a different question, and that it is related to Romer only insofar as it's about what would justify interfering with different degrees of people's rights to do what they will with their property, their hiring decisions, and so on. The test he proposes is a good one - "would I stick with markets even if I thought that they'd never eradicate unjust discrimination?" only if one assumes that there is a way to eradicate unjust discrimination by use of the police power of the State to enforce nondescrimination norms - and if one assumes that this would not create other forms of injustice. If you don't buy those assumptions, then the answers obviously become more complex, and as D.A. Ridgely points out above, it depends on what the bargain is. As Ridgely also points out, while there may be some property-rights absolutists out there, there are plenty of people who agree that there are situations where people can't be allowed to just do what they want. Indeed, the real conservatives out there agree with this idea more than those of us who are inclined toward a more libertarian perspective. So you don't need to fight that battle - the battle you need to fight is to convince people that the specific thing you want to achieve with a particular antidiscrimination law is worth the price...and that you have a clue about whether or not the law you propose/defend will actually move the ball forward.

I'm also not even sure that the goal to "guarantee everyone a fair shot at success, the kind of starting point I think is required by equality of opportunity." is widely shared. Most people (including all of the Liberals I know) want their own children to have the best chance for success that they can get even if that involves using opportunities that are not available to all.

Posted by: Jim Hu | Dec 26, 2004 3:40:43 AM

Posted by: oliver

Do "teeny workplaces" cover the handful of senior management who work mostly with each other and in isolation from their 10,000 historically discriminated-against minority workers? Should small work groups in big public or private businesses have to allow "all kinds of people" entry?

Posted by: oliver | Dec 26, 2004 8:35:01 AM

Posted by: D.A. Ridgely

Mr. Herzog wrote: “Romer doesn't say the state can't legislate on the basis of morality; it says that ‘bare animus’ is an unacceptable basis for legislation. While I can't think of a Supreme Court opinion that clearly makes the point, it seems easy enough to distinguish moral condemnation from bare animus.”

Well, maybe.

I trust we are not discussing Romer or any other positive law in our capacities as constitutional or legal scholars but to look to see whether any argument offered in that decision legislative history or elsewhere might stand on its own to shed light on the philosophical issues. The Court may be a smaller governmental body than Congress, but the need to craft opinions acceptable to a majority of the justices still makes it a small-scale sausage factory.

Thus, while Mr. Hu is correct that the lower threshold test for whether legislation meets the Equal Protection Clause of the 14th Amendment is whether it bears some rational relation to a legitimate state interest, the question is what rationale the Court used to decide that it didn’t. The higher “strict scrutiny” test was unavailable to the Court because homosexuals per se had not (yet?) been deemed a suspect class nor was any fundamental right (as defined by the Court) burdened by the Colorado law. It is common for lazy law students reading Equal Protection cases to stop at the point where the Court announces the test it deems appropriate: if rational relation, the state wins; if strict scrutiny, the state loses. Here, though, six justices sought to articulate reasons why the Colorado law could not meet the lower Equal Protection threshold; hence its rejection of the state’s asserted interests and dismissive talk of “bare animus.” I am inclined to agree with Scalia that the majority decision in Romer was “long on emotive utterance and ... short on relevant legal citation.”

In any case, I indulge in this slightly digressive comment only to make explicit what I think has not been stated with sufficient clarity. Mr. Herzog’s “nefarious project of showing the deep continuities between ... left-liberals and our classical-liberal ancestors” shouldn’t be taken as showing only that a case for such continuity can be made in the historical development of positive law. That’s a bit of a mug’s game which any reasonably competent legal analyst could manage, no offense to Mr. Herzog intended. The interesting points, which I take him to be trying to make, are (1) whether there is such continuity in the underlying philosophical presuppositions justifying that positive law as it has developed and especially as left-liberals would urge it to continue to develop (I think there is less than he apparently does) and (2) whether it is developing as it should, irrespective of its intellectual or historical pedigree.

Posted by: D.A. Ridgely | Dec 26, 2004 9:39:31 AM

Posted by: Jeff

I am not commenting on the comments but the post, which I as a conservative think has many merits.

Nor am I going to comment in depth about the history as propounded by Mr. Herzog, in large part because he knows far more about the history of the law than I do. I shall just say that the law pertaining to innkeepers was not general. Obviously if the common law had been as anti-discriminatory as he implies, there would have been no need for the 14th Amendment or the '64 Civil Rights Act.

Let's accept as a premise that a large majority of Americans agree, and properly so, that the state ought not to discriminate among citizens on invidious grounds, but may of course discriminate on non-invidious ones. As Mr. Herzog points out, that will leave plenty of room to disagree about which grounds are invidious and which not, but such disagreements should surely not be bitter ones.

I for one accept that certain types of business should also not be free to discriminate on invidious grounds. Again there is plenty of room to disagree about what types of business and what grounds. Nor is it crystal clear what standards are best for proving the more subtle manifestations of discrimination and what remedies are best. But if we agree on the basic proposition, disputes about such details should not be exteremely divisive.

The real source of dispute is affirmative action (or its newly created progeny, "diversity.") By its terms, affirmative action is state mandated or state supported favoritism for some group defined by a distinction already agreed to be invidious. But one group cannot be discriminated for without some other group being discriminated against. If, for example, the ultimate goal is a society in which no one is favored because of race, what justification is there for immediately favoring some because of race. We perpetuate precisely what we say we want to end.

I simply do not believe that a method simultaneously practical and moral exists to correct past discrimination. A person's life cannot be "fixed," and we cannot morally compensate A, who has been harmed, by harming B, who did no harm. The real solution is to give every child the best education that the child can absorb and that the parents will tolerate. (The latter qualification bothers me, but practicality demands it.) The scandal of American society is not discrimination, but a state educational monopoly that neither understands or desires educating. Had this society over the last four decades dedicated to improving education the energy and money and thought given to affirmative action, it would have been far, far better off. Affirmative action is a never-ending trap.

Posted by: Jeff | Dec 26, 2004 11:10:16 AM

Posted by: Mark

Jeff makes a good point about affirmative action which I, as a liberal, agree with: Affirmative action is not the answer to the diversity problem in education. Affirmative action is like slapping a band-aid on the compound fracture that is disparity in our educational system.

Posted by: Mark | Dec 26, 2004 11:51:45 AM

Posted by: Jeff

Uh oh, we may have a liberal and conservative agreeing here. Such disturbances to the balance of the universe will never do.

Mark and I seem to agree on the importance of education as a means to reduce (perhaps eliminate) the pains and harms of invidious discrimination. We seem to agree as well that the current state of education in this country is shamefully disparate, ranging generally from bad to abysmal.

All is not lost, however. Our agreement may be superficial, and we may disagree on how to eliminate the disparity by giving every parent a reasonable opportunity to get a child an excellent education. Indeed, it does seem he is primarily worried about variance whereas I am worried about the average.

Posted by: Jeff | Dec 26, 2004 3:21:12 PM

Posted by: oliver

"But one group cannot be discriminated for without some other group being discriminated against" is of course true in a sense, but I think it's not a bedrock truth. To accept it as true is to accept some of assumptions that I think are still up for grabs, such as whether we giveth to the state and society or whether the state and society giveth to us. If society doesn't let us into Harvard, because society wanted more Figians there, but instead society let us into Yale, then perhaps we should just be grateful for what we got, seeing as we aren't the crown princess.

Posted by: oliver | Dec 26, 2004 3:42:59 PM

Posted by: frankly0

Affirmative Action, I think, at least in a number of contexts, requires for its justification neither past discrimination nor the promise of a future "cure" of the underlying differential outcomes. That is, the problem might have come about in a non-discriminatory way, and may never be correctable, and still Affirmative Action would be very important and justifiable -- indeed, I think such an approach gets at the TRUE justification for Affirmative Action much better than do those which bring in past injustices or promises of cures.

Here's an example, with a few helpful suppositions. It might be called Backward State Affirmative Action. Let's suppose that we have among us a number of Backward States, largely rural and heavily agrarian, characterized by populations of relatively low skilled poorly educated people. Over the generations, economic opportunities for skilled and educated workers go into great decline, forcing the brighter, more industrious children of the state to seek employment (and more interesting lives) elsewhere.

Now here comes a supposition that I don't believe in, but many people, particularly on the right, do: intelligence (and perhaps industriousness) is so heavily genetic that the people in the Backward states become more and more a permanent, relatively unproductive population.

The question is, should institutions implement something like Backward State Affirmative Action, even though there was no real past discrimination, nor hope for future remedy?

I think that the answer here is a clear yes, and one sees it in a number of institutions, particulary educational institutions, under the guise of seeking a "nationally representative" class. The virtue of this Affirmative Action is diversity, and the feeling of empowerment granted to the Backward states, because they too understand that they have access to the institutions of power. The importance of those virtues is independent of past injustices or future cures. Now whether or not Backward state Affirmative Action should be implemented in ALL contexts in which Affirmative Action of other kinds is now applied is an open question. And perhaps the additional contexts are justified in virtue of the past and the future.

But recognizing that the core idea of Affirmative Action is justifiable without blame or promises should remove some of the standard recriminations back and forth typical in discussions of it.

Posted by: frankly0 | Dec 26, 2004 4:23:28 PM

Posted by: Jim Hu

D.A. Ridgely - having no formal law training, I guess I'll take it as a compliment that I could match the level of even a lazy law student with 5 minutes of Googling and reading FindLaw in the dead of night. ;^)

The point I was trying to make was that even if you reject Scalia's dissent and accept the majority reasoning, Romer doesn't say you can't hold the animus. I think I might agree with Ridgely and Scalia on the overall decision - whether or not I would have voted for Amendment 2, if sexual orientation is not a federally protected class (whether it should be was not for the Court to decide here, right?), then Colorado gets to make its own rules whether or not I think they're wrongheaded. But I apologize for continuing the Romer digression.

Jeff makes an important point about where the Affirmative Action debate currently lies. At it's simplest formulation, it's that two wrongs don't make a right. It seems to me that modern Conservatives are mostly arguing from this position, not from the race purity arguments of the old Dixiecrats, but much of the Liberal rhetoric seems to assume that the current anti-Affirmative Action stance is a charade to disguise the latter. In addition, Conservatives are sometimes overly suspicious that all Affirmative Action measures take the form of harming B to benefit A.

Here are three things my university does that are designed to promote diversity. Some of these are common at most universities. Do these pass the "no harm to B" test?

1) There are conferences designed for undergraduates underrepresented minorities who are interested in science. These are arguably discriminatory against nonminorities, insofar as they provide an activity to one group but not another, but it's an extracurricular activity. My university and many others send people to advertise our graduate program at these conferences, and we encourage attendees to apply. Those who do apply still have to meet our normal standards. If similar conferences existed that were not based on minority status, we'd go there too, but we haven't found such conferences.

2) When we have an open faculty position, we place ads in the usual professional journals, but we also place ads in journals that target educators in minority groups. I don't like this because it is completely ineffective in my experience, but should I also object for ethical reasons?

3) As long as there is an achievement gap in things like standardized tests, taking students with lower test scores will have the effect of increasing diversity. In fact, here in Texas, we are barred by State law from using test scores as the sole determinant for rejecting an applicant. The correlation between tests and success is positive but not perfect. Thus, we can argue for using a cutoff instead of a ranking. Is the following admissions policy harmful to B? If you're in the top 10% of your high school class and you meet an arbitrary minimum SAT/ACT, you go into a lottery for admissions (In fact, only a portion of the admissions work this way, but is it fair within this subset?).

Posted by: Jim Hu | Dec 26, 2004 4:35:13 PM

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