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"Being singled out on the basis of race, religion, or ethnic origin is intensely resented by the people who are discriminated against and could undermine their loyalty to the United States"

And what then would these CITIZENS' response be to the fact that a Federal Appeals Court judge is making policy statements ENDORSING discrimination against them? Please explain to your readership how you square your approval of admitted discriminatory treatment of Muslim US Citizens with the following quotes from a document you may recognize:

"The Right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

"nor shall any State... deny to any person
within its jurisdiction the equal protection of the laws"

A great many non-Arabs also intensely resent
it when Constitutional principles are tossed out or stretched in the name of security and/or efficiency.

It is insulting to millions of people to imply that annoying an Arab American at the airport is enough to make them become a terrorist. If we truly think this is the worst possible ill effect of profiling then I am very sad. Profiling creates ill will in ALL people, legitimizes and reinforces negative ethnic stereotypes, stresses differences between people and heightens fear, undermines respect for Constitutional protection of rights and the rule of law, makes America look intolerant to the rest of the world, and acts as a self fulfilling prophesy by punishing petty crime in proportion to the profile (vs. the realities of criminal demographics.)

And searching just enough people to trick Arabs into not seeing the discriminatory intent is no justification for the underlying bad faith. (Plus it is not going to work if you announce it in public in front of all the Arab citizens who are participants in the public discourse and who are reading this right now, and who I hope are writing comments.)

"strong ethnic and religious ties with the nations enemies"

If strong ethnic ties exist at all it is only because fearful people insist on measures like profiling and refuse to see that the motivator for both ordinary crime and terrorist acts is social and economic alienation. We should not forget that the other of the two significantly deadly terrorist acts in America in recent memory was committed by some lower class WHITE reactionaries in Oklahoma City. I am willing
to bet that the number of Arab Americans who feel ethnic ties to murderous terrorists is just as low as the number of white folk who sympathize with child killer Timothy McVeigh.

And, we cannot even begin to have a conversation about the "efficiency" of racial profiling at airports until airport security manages to stop at least ONE terrorist from completing their plans.


"Profiling creates ill will in ALL people, legitimizes and reinforces negative ethnic stereotypes, stresses differences between people and heightens fear, undermines respect for Constitutional protection of rights and the rule of law, makes America look intolerant to the rest of the world, and acts as a self fulfilling prophesy by punishing petty crime in proportion to the profile (vs. the realities of criminal demographics.)"

And I'm sure our friend Corey agrees that a more insidious form of racial profiling/discrimination, called affirmative action, is equally reprehensible.

I'd generally agree with Corey on all the negatives of racial profiling, but I'd depart, slightly, from profiling based on national origin.

Would it be irrational or generally considered unethical to use racial profiling against German nationals during World War II? To some extent, I believe measured profiling of those individuals emerging from known trouble spots--Yemen, Saudi Arabia, Afghanistan--is acceptable on both an ethical and a rational basis.

John Smith

If witnesses report a theft by a young black male, it would be absurd for the police to look for suspects among other groups in the population.

That assumes the reports are credible.

No one objects when smokers are charged a higher price for life insurance than nonsmokers, even though many smokers outlive many nonsmokers.

Except for the marginal smokers who have not adversely selected themselves into the insurance plan.

"The ethnic composition of the illegal work force would be altered by profiling, but the crime rate would be affected only to the extent that Hispanics are more efficient drug couriers because of language and other ties to major drug supply countries; the net effect on the crime rate would probably be small."

While the overall crime rate might not change significantly, it might change drastically in certain neighborhoods or certain states, and affect certain communities differently than others. Certainly if refugee Vietnamese replaced poor Hispanics as couriers, the overall rate might be stable, but the raw number of Hispanics in jail from in a particular neighborhood would go up, and the families in that community would suffer.

"I do not think compensating them financially for the additional inconvenience would rectify the problem; indeed, it would underscore their differentness from their fellow citizens. (This is also an argument against reparations for blacks and American Indians.)"

That assumes that the argument for reparations is to dissolve differentness and actualize assimilation. The argument for reparations is to compensate for past harms. If someone harmed you because you are different, why wouldn't you note that someone harmed you because you are different? Why the harm was done seems an essential part of the claim. You harmed me because I was different, now pay me for the cost of that harm.


Affirmative action is neither insidious nor profiling, nor is it the topic here, though I imagine if you wait a week or so, Posner will
tell us it is not economically efficient, probably citing flawed research from UCLA.

I completely support affirmative action, and I am not interested in your stories of whites denied admission to college. Everyone on both sides of the debate will admit that without affirmative action, blacks and other minorities would be under-represented at top 50 schools. The importance of finally engaging minority students in the public discourse of America in a real way trumps your wounded sense of white pride.

The difference here is that while affirmative action has demonstrable positive effects, profiling does not. Profiling is the negative discriminatory treatment of a minority interest because of entrenched bias. Affirmative action is the positive preferencing of a minority interest for the benefit of all of society. (With the hope of eventually correcting entrenched bias.) Those who are against it have failed to appreciate their personal stake in the diversity and settled equality of the public sphere.

I would consider it wrong to profile Germans with US citizenship during WWII. (As Japanese American internment was wrong.) We were not interested in German people we were interested in Nazis. (Just as now we are not interested in Arabs we are interested in Violent Religious extremists.) There is NO ethnic correlation to dangerous ideologies, they can come from McVeigh or white teenagers from Littleton Colorado as easily as from Osama.

It does not make sense to talk about profiling German nationals during WWII when our official policy was to kill them all (witness the firebombing of Dresden.)

Incidentally, I am white and of German/Irish ethnic background.

John Smith

"I suspect that the optimal policy is to subject more U.S. citizens of apparent Middle Eastern origin or Muslim religious identity to intensive screening than other citizens, but to subject enough of the other citizens to the same intensive screening so that the (lightly) profiled group does not feel markedly discriminated against--and so that substitution of terrorists who do not fit the profile is held in check."

I suspect the optimal policy is to profile bald-headed 7th Circuit judges who teach at the University of Chicago, because it is hyperrationalist Western thought that Islamic fundamentalists oppose. Harassing these individuals (let us call them "the Richard Posner") will be a good faith token to Islamic zealots that their jihad has been successful enough to render future terrorist attacks cost-ineffective. Much like sending Robespierre to the guillotine ended the Reign of Terror, so shall profiling the Richard Posner end the War on Terror.

Hannah Abdul-Hamid

"Incidentally, I am white and of German/Irish ethnic background."

All the more reason to think your statements credible; because if you weren't white, no one would believe you. Jeez.

Learned Hand

"Everyone on both sides of the debate will admit that without affirmative action, blacks and other minorities would be under-represented at top 50 schools."

You're wrong.

1. Admissions boards look at more than just SATs and GPAs. Admissions boards examine all sorts of soft factors that simply permit them to exercise their discretion.

2. I know blacks with 1500s and above on their SATs who went to HBC/Us (historically black colleges/universities) for "the black experience." Many of them were admitted to Harvard, MIT, etc. Others did not apply to Harvard, Yale, etc. and would have preferred smaller schools like Oberlin or Haverford, but went to HBCUs instead because they were offered free rides as a consequence of their high SAT scores.

2. It is not necessarily true that every black person at an HBCU is there because he is poor and a low-scorer on standardized tests, and not true that every black person at an elite Northeastern institution is there because of affirmative action.

3. So I'm not sure what underrepresentation means: how many black people should there be at an institution greater than the number qualified to be there who wish to attend?

4. The problem isn't that universities are admitting un-qualified blacks, it's that they're using discretion to admit whomever they want: there are blacks with 1500s and 3.7s turned down from, say, the University of Chicago. (i.e., me)

5. If a high-scoring, high g.pa.ed black was not admitted to an elite institution that supposedly practices affirmative action, what does your definition of "underrepresented" describe in a counterfactual world WITHOUT affirmative action? If a black person with a 1500 and a 3.7 can't secure admission to a particular elite institution with or without affirmative action, how is it that affirmative action prevents "underrepresentation"? See # 3.


I find it curious that Corey is so completely put off by racial profiling, yet he finds no problem with affirmative action.

In the Michigan affirmative action case where the Court narrowly upheld the school's affirmative action scheme, the plaintiff had a 8 or 9% chance of admittance with her GPA and LSAT score. Can you take a guess what her chances would have been had she been black? 100%.

It that's OK with you, but searching persons of Arab descent more frequently at the airport is not, then I'd like to know why, exactly.

You should also seriously question whether or not affirmative action is actually increasing black and minority representation in the professions when it results in placement which is not conducive to professional successs. That is, placement at schools which they would otherwise not be admitted.



I guess what I'm getting at is that if you allow racial discrimination for x reason (maybe it's a good reason to you), why do you put on the pious tone when someone else suggests there may be other reasons. In this case, national security.

Maybe some people believe national security or not getting blown to bits ranks a little higher than "diversity" or whatever nebulous concept you think is at work which justifies racial discrimination in college admissions. Maybe you think that objective is more important than stopping terrorism. That's OK. But you can tone down the absolutist rhetoric, unless you want it thrown right back at you.


"All the more reason to think your statements credible; because if you weren't white, no one would believe you. Jeez."

That was not my meaning. In the past when I have argued about this topic on the internet, people have made assumptions about my race. I wished to forestall this and also to underscore the point that white people also have a positive stake in protecting minority interests.

As for Palooka, I believe I explained what I feel are the differences between profiling and affirmative action.

"You should also seriously question whether or not affirmative action is actually increasing black and minority representation in the professions when it results in placement which is not conducive to professional successs. That is, placement at schools which they would otherwise not be admitted."

I have seriously questioned this, as has prof. Sander at the UCLA school of Law in an article that gained national renown last November. His article does NOT take into account the effect of competition and bias AT the school in re-enforcing the performance gap that led to the affirmative action admissions decision in the first place. If the school was a cooperative environment, the black student would benefit from being admitted to a better school than his/her raw test score would otherwise permit.

If you feel that the point of Aff. Action is to increase the numeroisty of Black lawyers, then perhaps your point is valid. I believe that the goal of Aff. Action is to correct the Admissions test performance gap between groups. The idea behind it is the same as the idea behind mainstreaming in public elementary schools. Putting students who would not get into Harvard in classes at Harvard will be good for them. This effect is countered somewhat at the college level by the increased competition and settled bias at the collegiate level.(Especially in Law School, where Prof. Sander's study focused.)

Alternatively, I would support the total rejection of standardized testing as a criteria for admissions. Prof. Bill Henderson at Indiana University has done a very interesting study that shows the only reason LSAT scores correlate to Law School performance is they share a common feature, i.e. time pressure. When you look at non-timed law exams, performance does NOT correlate to LSAT scores.

Incidentally, when I say proportional representation, I mean that the number of minority students at a given school shoudl match the proportion of minority students that apply to a given school. If there were no difference in performance on admissions tests between demographic groups, this would be true. We need Aff. Action because there IS a difference.

Settled bias in society tends to reduce opportunities for minority students from birth on through life. Our goal should be and is to reduce this bias. Aff. Action can help here.


I think it's pretty obvious that affirmative action is another form a racial profiling. It fits the criteria, where specific individuals are treated differentially by the government based on characteristics of the group they belong to.

Without going into great detail, the poisonous negatives of affirmative action are so overwhelming to society as a whole, and millions of individuals in particular, that its effects are worse than ethnic profiling by police, so I do feel it's worth discussing in this particular forum.

Look at some of the tortured defense necessary by those who oppose racial profiling in one way but support it when it comes to affirmative action (see above): "Everyone on both sides of the debate will admit that without affirmative action, blacks and other minorities would be under-represented at top 50 schools. The importance of finally engaging minority students in the public discourse of America in a real way trumps your wounded sense of white pride."

There are so many things wrong with this statement, it's hard to know where to begin. First, note it assumes there's a proper amount of "representation" based on race. (I suppose, in the same way, police should equally stop every type of driver, regardless of the fact that young males are more likely to drive erratically.) If Asian-Americans or Jewish-Americans work extra hard, I guess there are then "too many" in our top schools. Let's kick Posner off the court since we have too many Jewish judges, while we're at it. This is one of the most insidious problems with affirmative action--it tosses the very concept of merit, actually earning a place, out the window. let's even assume African-Americans have no chance, that they're simply automatons responding to a vastly unfair society and have been completely driven down with no hope except affirmative action--even then a certain amount of places in a university is wrong. If society were completely unfair it wouldn't, say, let them learn to read, which would mean they would not profit from a university education. If they are clearly less qualified than other students, they will not do as well, be more likely to drop out or take easy courses, and would actually profit more by being in lower-tier yet more competitive (for them) schools. Corye's real problem (from above), seems to me, has a simple solution--don't let them go to the top schools unless they actually earn it regardless of race, and when they graduate from lower-tier schools, say the degree is from Yale or Harvard. (Why not--quality no longer matters in Corey's world?)

What affirmative action does is tell groups who enjoy it that there is no need to work harder--no matter how low your qualifications go, we will lower our standards. It also tells the we don't expect as much from them, and won't in the forseeable future. Much better for such a group as a whole is saying: "We believe in you. We will fight for better education everywhere, and make sure you are treated fairly, but we won't condescend to you and accept less from you than others. We know you're just as good, and we'll give you every chance to prove it." This is far more likely to raise up any group as a whole than giving the top ones, many of whom already enjoy the advantages society has to offer, extra breaks.

The idea, in our modern world, that not having full "representation" of certain minorities (favored minorities in Corey's world, not the many other types of minorities no one cares about) is the only way to have them engage in "public discourse in America" is absurd. There are lots of ways to be part of the national conversation and only elitists think you have to go to a top school to be part of it. But if he really believes it, then the first thing he should do is shut down minority schools that suck away valuable entrants to top-tier schools.

As to his contempt for all the whites and others whose "pride" is hurt by affirmative action, I'm touched. But blacks and other favored groups are the ones whose pride is hurt. There's the obvious stigma attached to affirmative action, a stigma that makes sense. If I hear someone has a degree from a top school, I can assume it's because she worked hard to get in. And if the degree is cum laude, she also worked hard while there. But if I find out standards were significantly lowered to let her in, it makes sense to think less of the degree. And what happens when I find out standards were lowered every step of the way--to get into a good prep school, to get into a good college, to get into a good law school, to get into a good law firm--what am I then to think? Thank goodness she was able to take part in our public discourse?

Affirmative action, far more than racial profiling by police, slows down the progress and acceptance of those it's supposed to help. The arguments are many and obvious, and I'm sorry to see someone who can so obviously appreciate the problems of profiling unable to see how much worse it is when done more matter-of-factly on a much wider canvass.

I will not mention my race, I'd rather have my argument judged on its merits. But if I were black, would that make my argument better?


I think Posner is wrong on two points. First, he says that profiling may drive Arab-Americans to become terrorists. I doubt that, or at least, I doubt that profiling would make them any more likely to be a terrorist than, say, conducting wars in Iraq and Afghanistan, supporting Israel, etc. If we avoid activities that we believe are necessary on the basis that what we do might cause others to hate us more, than we should just give up because "the terrorists will have won." I think this argument applies with great force to ARab-Americans, who can be presumed to have an underlying loyalty to the United States. If profiling and attendant searches at airports--which, in many instances involved nothing more than insults to dignity, rather than concrete harm--are enough to undermine that loyalty, than we're in a lot of trouble. Second, Posner says that that if we apprehend/deter those we are profiling, then others will join the labor market, so to speak; ditto, if we spend most of our resources on DC and NEw York. I think this is not true, based on current evidence. Although there have been some women suicide bombers in Israel and a few converts (Padilla, Reid) have been used by al-Qaida, the vast majority of terrorists are still young Muslim males. W/o getting into a Larry-Summers problem, blowing yourself up to kill other people seems to be a particularly male thing, and radical Muslim ideology still seems mainly to appeal to people of ethnic Muslim/Arab heritage. In any event, proper profiling includes other attributes than just race/ethnicity, including, e.g. travel patterns, method of payment, and subtle actions (eye movement, nervousness, hand movements, etc.), so that a person who had other indicators of potential terrorism, even tho' a woman or non-Arab/Muslim would get equal treatment, as Reid, in fact, did when he tried to get into Israel. In addition, terrorists, particularly al-Qaida, have some an inclination for spectactualar and symbolic attacks--e.g., the WTC (previously attacked), Pentagon, and possibly the WH or Capitol Building, as well as the attempt on the Eiffel Tower. It is entirely reasonable to spend money where attacks are most likely. Rather than targetting other sites if we increase security over likely targets, terrorstis are more likely to increase their desire/capability/determination to attack those same sites for the pyschological value.


"If you feel that the point of Aff. Action is to increase the numeroisty of Black lawyers, then perhaps your point is valid."

If the point of affirmative action in college admissions is to encourage minorities to join the discource of our polity (or whatever you said), then I'd presume the number of minorities in the professions would be of central importance to that end. If, however, you wish to have more minorities receive degrees from the most elite schools, then maybe affirmative action is effective at the specific goal. But what, exactly, is that serving? Do you really believe you need a law degree from Harvard or Yale to make your mark, serve as a role model, and lead? Eliminating affirmative action could very well increase the number of minorities graduating college, though it would presumably lower the number of minorities graduating from the most elite schools. How does reducing the number of minorities who graduate from college serve your stated purpose of involving minorities in American society and decision making?


I think we're off topic here. Affirmative action and racial profiling are different questions. Let's confine the topic to Judge Posner's post.

Obviously, we're discussing the legitimacy of profiling where there is no individualized suspicion - we don't have a description of the terrorist or even know that there is one to be found. So the question is how best to protect against any *possible* terrorist. The simple answer is to search everyone, which we do at aiports. That is a classic administrative search, and there is no stigma attached, since all passengers are searched.

The next question (if we're talking about aiports) is if/how/when to conduct secondary searches. Of course, anything suspicious from the initial search justifies a follow-up search. But the current system is also to conduct a certain number of additional, suspicionless, random searches. I guess the question is whether these searches should be truly random or whether the "profile" of your average terrorist (if there is such a thing) should be taken into account.

I would like to know whether there is an accurate "profile" of a person likely to cause trouble on an airplane. And, even if there is, we face a fundamental societal question. If we truly believe in liberty and equal protection, what does it say to the world if we single out one group of individuals for searches? Have we sacrificed liberty in order to attain security? Is there not a better way?


We are off topic perhaps because Aff. Action is fundamentally more interesting than the finer points of profiling in an environment where there has never even been a successful apprehension of a terrorist using profiling. Prove to me that terrorists are trying to board domestic flights. Remember that past results are not determinate of future results. Alternatively, perhaps explain why searches of the private effects of US Citizens at airports are justified AT ALL under the constitution. Why is it "reasonable" to search millions of people each year? That is a lot of violations of autonomy and a ton of ill will. At some point people were willing to sacrifice nearly everything for the Bill of Rights, after 200 years, what happened? Discuss...

"Eliminating affirmative action could very well increase the number of minorities graduating college, though it would presumably lower the number of minorities graduating from the most elite schools."

I agree with that statement, and it comes down to a question that I do not feel qualified to answer. Which thing is better/more important to the goal of decreasing the minority performance gap, 1 Barak Obama or 10 black public defenders in Detriot. (Or alternatively, you might say the most effective measure towards the goal is standardized test and meritocracy reform)

I do not like the "Harvard Effect" because I am not at Harvard, but it should be clear to all of us that graduates of elite schools have access to more power in society, precisely because we label those schools "elite". 13% of all Law professors in the country come from Harvard. 60% of all Law professors come from the top ten schools. This includes professors at predominately minority schools. Clearly the influence on society of thinking at these schools is profound.

The goal of proportional representation is to act as if there was no performance gap. It is based on the premise that access to higher education at ALL levels will be a good thing. Recent scholarship has AGAIN brought into question the utility of college admissions standards in judging eventual performance in careers, so why would we rely on them to dictate what is fair? If you are going to wring your hands about "lowering standards" then you had better be very sure those standards are objectively fair and useful in the first place.
I submit that they are not.

The effect of dropping affirmative action while the test score performance gap still exists would be to concentrate minority applicants in the lower tier schools and in effect re-segregate much of higher education. We have been through this before as a society, but apparently many were not convinced.

Daniel Chapman

Corey, could you please explain this performance gap you keep mentioning? When I took the LSAT, I wasn't aware that there was a racial bias involved.

I would just like to know the nature of this performance gap in standardized testing and why you think it exists. I find it hard to believe that there is anything insidious involved in the test itself or the grading. Also, assuming such a gap exists, why do you think that the best way to fix it is to pretend that it DOESN'T exist and treat the lower scores as higher?


For a partial rebuttal of the idea that the LSAT correlates to "being a good lawyer", see Indiana Univ. Law Professor Henderson's:

The LSAT, Law School Exams, and Meritocracy: The Surprising and Undertheorized Role of Test-Taking Speed, 82 Tex. L. Rev. (2004).

I don't know if there is a way to get free access to this online, though I suspect if you care about the LSAT, you might have acess to Lexis or a Law Library

I am not basing my argument on an assertion that there is a racial bias in the LSAT itself, that has simply not been shown yet (nor fully investigated.) However, since the median performance on the LSAT is lower for Blacks, Hispanics, and American Indians, it is clear that some racial bias does exist in our society. Reasonable people no longer believe in Eugenics or racial predestination of of raw intelligence. External factors are operating such that minorities on average receive inferior educational opportunities.

Personally, I am willing to compensate for bias by manipulating standardized test scores because I do not believe that those tests are valid measures of those things they are supposed to measure. (Just as "being Arab" is not a valid measure of "Likelyhood of being a Terrorist")
Non-correlated variables should not be used to correlate results!

If the test is an imperfect predictor of performance in law school, as the Henderson data shows, then it is bogus for someone to admit me over you because my score was 5 points higher.
As long as the test is not in itself biased, then it can be said to measure "something", but unless that something is exactly equal to "likely performance in law school" or "likely performance as a lawyer", its use as admissions criteria is suspect.

But in the meantime we all buy into the meritocracy so it is important to affirmatively fight for proportional representation within it.


"However, since the median performance on the LSAT is lower for Blacks, Hispanics, and American Indians, it is clear that some racial bias does exist in our society."

So the better than average scores of Asians on the SAT must mean that there is an Asian bias, right?

It is true that nobody really believes it is race which is the explanation, but that does not mean when a racial group receives lower than average scores that there is bias at work. It just means that there are other qualities, present in different proportions in different communities, which cause the disparate results. Intelligence as measured by IQ tests, or the the skill-centric SAT do not measure "innate intelligence." Skills must be learned, and then practiced often, to perform well. It is therefore clear that the differences emerge from environmental and cultural differences which either promote or inhibit the acquisition and mastery of the requisite skill set. Which, unfortunately, the government can do little to resolve. The cultural differences, generally speaking, on the emphasis and respect placed on education in the Asian and black commmunities is noteworthy.

An excellent primer on this discussion can be found in Thomas Sowell's Ethnic America.


"I will not mention my race, I'd rather have my argument judged on its merits. But if I were black, would that make my argument better?"

Not necessarily, but if you were the black person who posted on here earlier under the handle "Learned Hand," your argument would be much better. He seems to be about ten times smarter than you.


"I think Posner is wrong on two points. First, he says that profiling may drive Arab-Americans to become terrorists."

I was skeptical of that charge, too, but it's important to examine it a bit further. While it seems unlikely to magically transform an individual, it could very well shift recruitment emphasis to different groups. Also, we could see terrorists utilizing financial incentives to those who do not fit the profile as well. Thus we wouldn't see so much a change in a given individual, but an institutional shift in operations and recruitment--some concern has centered around gangs becoming in involved in terrorist activities, for instance.

It's also important to note that it's not just turning a Muslim or Arab American into a full-fledged terrorist which could result in a negative effect on anti-terrorist operations. It's important the Arab and Muslim American community feel like the can trust the US government with information. If it's inconceivable profiling may turn someone into a terrorist, is it inconceivable it would make them less willing to report suspicious activity? I think not.


"It's important the Arab and Muslim American community feel like the can trust the US government with information."

Only if you believe the assumption that the American Arab community has any useful information about terrorists, which is one step removed from the Arab = Terrorist assumption.

"some concern has centered around gangs becoming involved in terrorist activities"

Why not just label 18th Street to be a terrorist group, then we could use the Patriot Act to justify all of those illegal no probable cause searches that LA and NYPD have been doing for decades.

Who knew that McCarthyism would appear in the new century. I guess "terrorist" does work about as well as "communist" in the old Cold War mythology, so why not run it back out.

There are Terrorists in our midst! I have here signed documents testifying to the presense of Terrorists within the state department!

I am not saying that it is unreasonable to fear terrorists. I am saying it is unreasonable to fear that your neighbor could be a terrorist. It is unreasonable to permit our civil liberties to be infringed because we are afraid of terrorists.

In this way, terrorism has successfully changed American life for the worse.

Dru Stevenson

I have one brief comment on Posner's responses about profiling (with which I otherwise agree, I think): the supply of traffickers is not necessarily elastic if distinct groups (i.e., their members) tend to have different opportunity costs with regards to crime. It seems clear that at least those who face a language barrier in the job market, and perhaps those who have fewer opportunities for legitimate employment due to societal discrimination, would have significantly lower opportunity costs that other citizens - and each group has a finite number of members, however large it may be. The differing opportunity costs undermine the elasticity. Profiling seems morally repugnant, but it does not seem true that the supply of offenders from different classes or groups is truly elastic.

John O. McGinnis

As a matter of statistical nomenclature, there is bias in all tests. Changing any test will result in bias, if it affects any discrete category of persons in a unidirectional way. For example, if adding more analytical math questions on the SATs drops the average female testtaker's score, that's technically bias. If putting a writing section on there drops the average male testtaker's score, that's technically bias. If putting questions on there regarding activities that white children but not black and Hispanic children have been culturally exposed to drops average black and Hispanic scores, that's bias. It doesn't mean it's unacceptable bias. We might want boys to know how to write, or want girls to know how to analyze quantitatively. On the other hand, we might not think it relevant that blacks and Hispanics know the finer points of regatta, or that a match and a game in tennis are not the same thing, but might refer to the same thing in plain language down at the park. S o, yes, all standardized tests are "biased."

Race is not the only soft factor involved in admissions. Geography, extracurricular activities, an "I was victimized" essay, parents who are legacies, athletic ability, musical ability, personal finances, immigrant parents, work history, children, etc., are all soft factors that allow admissions boards to exercise discretion. If we're going to be fair (consistent across cases), then the problem with race as a soft factor is true of all other soft factors. Why should a single mother with ten kids get extra points for that (why isn't abstinence worth points)? Why student government treasurer (playing video games at home isn't worth something if I want to be a computer scientist and am applying to MIT)? Why is anything "soft" considered? Why not merely use standardized scores and G.P.A.s (unweighted) and nothing else? The problem with affirmative action isn't that it helps certain historically disadvantaged groups (that's not necessarily a bad thing), it's that it gives these university officials all this discretion to keep its school "elite" at the expense of fairness to high-scoring individuals whom they don't like FOR WHATEVER REASON.

Profiling is not based on reasonable fear. Reacting to reasonable fear is fine. Profiling requires PRESUMING WITHOUT ANY EVIDENCE OF INDIVIDUAL DANGEROUSNESS that a person is likelier to be dangerous because of some group statistic somewhere. This is a fallacy: the fallacy of division. Beyond the fallaciousness of the argument, the question is the same: why should we give officials this much discretion to single ANY of us out and treat us in a disrespectful matter?

Lastly, we don't have any metrics for determining who the terrorists are and how many we create: Secretary Rumsfeld even wrote a such memo that was published in the New York Times. Given that many Muslims are not Middle Eastern, but are Transcauscasian, like Chechens, there are many potential Muslim terrorists who look just like ordinary white men. There is no reason artificially to constrict the supply of potential terrorists or to constrict sneakily the cross-elasticity of the current terrorist and potential terrorist population. Our alliance with Russia could produce plenty of Muslim terrorists who look just like Richard Posner. Why then, are we using complete unknowns to justify disrespecting Arabs? Richard Posner said that the 9/11 Commission should not have recommended changes to our homeland security regime because there are too many unknowns to formulate an optimal restructuring; why then should we profile if there similar unknowns which would be obstacles to optimization?

Georgia O'Hanlon

"In another thread on this website, a commenter just wrote of how affirmative action is just part of a greater problem in college admissions. That is, the many soft factors which may seem abritrary or capricious. This commenter has also failed to grasp the idea that people are particularly offended when its their race which is the basis of such discrimination."

I don't think you can generalize about how anyone will emotionally react to being singled out for any reason. I had a friend who felt extremely offended that he didn't get into Yale after hearing that an otherwise indistinguishable a soccer player was admitted. (He was a national fencing champion.) Who gets to say that race is more pernicious than which sport you play? You claim without proof that race is worse, but I think the fencer would disagree with you. In fact, he'd call you insensitive, just like you did Gary Becker. You're insensitive to the bloc of non-soccer players out there (which is most college applicants), who, say, applied to U of M's college and weren't awarded an extra 20 points for being "the right kind" of athlete. Given that both athleticism and race receive an extra 20 points in U of M's system, how is race a "worse" soft factor?


"Which thing is better/more important to the goal of decreasing the minority performance gap, 1 Barak Obama or 10 black public defenders in Detriot."

This assumes:
1. Barack Obama is unusual in the black population.
2. The hypothetical black public defenders are valid contrasts to Barack Obama: they not as qualified or credntialed as Barack Obama.
3. Public defenders are not highly qualified graduates of elite law schools. (So untrue!)
4. Any public defenders who are highly-qualified graduates of elite law schools are not black.
5. The purpose of education for black people is to create public servants, because:
6. Black people, in general, live in squalor like subhuman animals.

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