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08/21/2005

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Federal appellate judge Richard A. Posner gives a partial defense of affirmative-action programs (i.e., preferential treatment on the basis of race)

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John Kelsey

Jack Spratt: Nobody is arguing that AA caused racial prejudice or hatred--racial hatred predates any form of AA, so there's no way for that to have happened. Further, some form of racial hatred exists in places all over the world, some with AA, some without. That wasn't what I was arguing, nor was it what Posner was arguing.

Instead, AA changes the meaning of some accomplishments for blacks relative to whites. That has seriously ugly consequences. One of those consequences is that it re-enforces existing prejudices. Another is that it produces an economic incentive to discriminate in some cases, where none existed before. (The normal situation is that discrimination *costs* an employer.) This is a big cost to AA; I think it's a very legitimate question whether the benefits outweigh it.

--John

Jackk

I tend to agree with both posters on the main issue. I strongly believe that this country needs to provide an equal playing field for all and sometimes needs to redress the harm done to some groups in the past.

However, I believe that AA as currently constituted may have constitutional problems, doesn't reach those who really need the help, and flies in the face of the race blind ideal that I would like to see.

So I have a question I have long pondered. AA advocates aften support the program by saying minority children are poor, live in slums, are the first in ther families to get education, etc. and for these reasons needs support.

So why don't we ammend affirmative action to support people who meet these criteria? It could be race blind and needs based.

I think this would still include minorities who need it the most, but would exclude those that don't. In their place would be poor whites, who often do face the same disadvantages.

Palooka

Jackk, good post. Those blacks benefiting from affirmative action(especially at Ivies) are not predominately poor or disadvantaged. Often they are even foriegn!!! But Posner doesn't seem to care much, because seing rich, privileged, and foriegn blacks provides a great "morale" boost to the poor, disadvantaged ones from the inner cities! Poor white people need no morale boost, I guess.

It's odd that anyone would seriously posit that lowering standards for any group would result in that group excelling academically. If black and Hispanic students only had to receive a C to get an A, what do you think the typical A student would do? Stop working after he got a C. I am suprised the legal titan of law and economics and a noble prize economist did not see to mention this perverse disincentive inherent in affirmative action. I suspect a considerable portion of the test gap is attributable directly to affirmative action's lower standards.

Corey

"I suspect a considerable portion of the test gap is attributable directly to affirmative action's lower standards."

I strongly disagree with that. Students aren't that forward looking, especially not in K-12. They compete with their peers in the environment they happen to live in.

I think the performance gap is primarily attributable to poverty, crime, discrimination, failure to address linguistic differences, poverty, and poverty in the environments where many minority students find themselves.

As long as minority students still face discrimination, we can't make it all about poverty. If the effect of racial discrimination was zero then I would agree, make AA about class.
But the effect is NOT zero.

Ask yourself the question, would I rather try to get a job as a poor white or a poor black. Sociologists HAVE asked that question and people DO identify an economic advantage in being white. See Cheryl Harris, "Whiteness as Property", 106 Harv. L. Rev. 1709.

Paul

Dam good posting.I read some of you're articles and they are really nice.

Palooka

"As long as minority students still face discrimination, we can't make it all about poverty. If the effect of racial discrimination was zero then I would agree, make AA about class.
But the effect is NOT zero."

I disagree that discrimination remains a potent force for keeping minorities economically down. There is a stronger case that the effects of past discrimination persist. Still, Thomas Sowell and others suggest that the economic effects of discrimination in a capitalist system can be overcome. Witness the intellectual and economic vitality of the Jewish and Asian communities, for example. This is not to say the effects of discrimination are non existent. Far from it. But I do suspect that Sowell is right that culture--specifically instilling the value of education--plays a much stronger role than discrimination.

I can understand a race+class formulation for AA better than just race. But this does not resolve the fact that we have affluent blacks receiving affirmative action while poor whites are denied it. There is something fundamentally wrong with that equation. Affirmative action tends to benefit those who have already, by and large, risen from poverty, while doing little to nothing for those who remain mired in it.

R

WFG:

What I said is that in the play "Othello" Desdemona is a white woman, and Othello is a Moor. That is not contraversial. When the play was written, Desdemona would have been played by a white man, as would Othello. Whether Othello would wear blackface, I cannot say. Perhaps you can tell me.

The fact that men played women in the 16th century -- and in the case of Othello, whites played blacks -- does not entail that, in the 21st century, a director should not have the choice of casting the play with races and sexes that correspond to the characters' actual race and sex. If the director so chooses, that is not a constitutional violation.

No doubt, casting the play in reverse could make for interesting theater -- which I said in the earlier post. That doesn't mean that a director shouldn't have the choice of choosing to cast Othello as a black man, if he or she wishes.

Your final statement is absurd. You are clearly looking for a fight, and have nothing interesting to say. We have enough people like that here. You should not post on this site again. If you truly took offense at my earlier post, you ought to have read it again, or simply practice reading more, so as to increase your comprehension levels.

R

please disregard the formulation "choice of choosing," and replace with "discretion."

R

I will say it very plainly so that everyone can understand:

Directors should be able to cast Othello however they wish. If they choose to cast Othello as a white woman for artistic purposes, then they so choose. If a director chooses to only audition actors of a certain race or sex for a role -- be it only white women, or only black men, and for whatever purpose -- that is not an equal protection violation.

I know -- it's very interesting that men played women in the Elizabethan era. But that simply does not matter for this analysis.

As an aside: I imagine that Stewart cast Othello as he did because he wanted to play Othello himself while preserving the racial dynamic in the play. It probably worked -- I don't know.

If we cannot agree on the above (leaving out the aside, about which reasonable people can disagree) then this has truly turned into crazy town.

Larry

It's not my intention to cause trouble, but, because of affirmative action (and other discrimination)laws, even casting a play becomes a legal issue.

You may think a director can cast whomever he chooses for a role. Perhaps. But let's say the director openly says "I will only hire a set designer who is white." He can be sued under civil rights laws--this isn't even controversial. The same question then applies if a director says "I will only hire an actor for this role who is white/black/male/female." If the director is not to be sued, he has to show that the race/sex of the person is an important qualification for the job, important enough to trump discrimination law.

It can also be more subtle. Perhaps no rule is announced, but the director only sees white actors for a role. Is that racial discrimination? Suppose he does numerous productions of Hamlet, and sees anyone of any race or sex, but always casts white males. Is that a case of racial/sexual discrimination?

R

The way you have stated the law, Larry, is the way I understand it.

The difference is that there is no compelling reason to prefer one race over another when considering set-designers (outside of affirmative action justifications, which I am leaving out of the analysis for now) whereas the artistic vision of the director can provide a compelling justification.

In choosing between Hamlets, it might be that in a given case the discrimination wasn't justified by any artistic vision, but was instead a product of racial animus. But if the director can show that it was a product of artistic vision -- and I doubt that would be difficult in most cases -- then it would not violate the Equal Protection clause.

In choosing between Othellos, the race of the actor is almost prima facie an artistic choice. Directors can and should take race into account when casting Othello -- no matter what decision they ultimately make. The race of Othello is important to the play.

Not only is the above settled law, but it is something most reasonable people can agree on.

R

the end of the first paragraph should read: "the artistic vision of a director can provide a compelling justification for auditioning only actors of a given race for certain roles."

Jack Sprat

"The race of Othello is important to the play."

Othello is a character. No one disputes that the race of the principal character of Shakespeare's Othello is important to the play. The race of the actor playing Othello, however, is another matter.

Jack Sprat

"If we cannot agree on the above (leaving out the aside, about which reasonable people can disagree) then this has truly turned into crazy town."

Then, by your own admission, you are the resident of a "crazy town".

Jack Sprat

JOHN KELSEY: "Instead, AA changes the meaning of some accomplishments for blacks relative to whites."

So say you. I say that most white people are inclined to believe blacks are inferior no matter how they acheive their accomplishments. Abolish affirmative action and white animus for blacks will still exist. Case in point:

N.E. HATFIELD: "Hey Jack! Chill! Not all of us are out to hang one from the nearest tree or lightpole. As a matter of fact, My 5 great-grandfather manumitted his slaves back in 1790 when he become convinced of the evil of that peculiar institution. C'mon quit whining, you guys were emancipated years ago."

If abolishing affirmative action does not eliminate white animus for blacks, then arguing that affirmative action should be abolished because it causes white animus for blacks is a silly argument. The challenge I made to Becker (and Posner, who accepted his points uncritically), was to come up with an argument that was not silly. Your irrational defense of their silly argument, John Kelsey, is really neither here nor there.

WaitingforGoogle

R,

If your argument is so clear, then why did it take successive self-corrective posts for you to lay it out?

Jane Thirnbough

JACK SPRAT: "If abolishing affirmative action does not eliminate white animus for blacks, then arguing that affirmative action should be abolished because it causes white animus for blacks is a silly argument."

I agree with this to the extent that: (1) affirmative action was created to combat discrimination by whites with animus for blacks and that (2) even if affirmative action creates some quantum of new white animus, the original white animus that predated the affirmative action is the source of the new white animus -- i.e., the same old white animus is simply responding to a brand new event. I agree that racist white people will simply find excuses to interpet events through a racist lens and to promote white special interests, because white nationalism is an ideology, and what ideologies do is transform over time by conforming themselves to the present political realities so as to most effectively push for a transcendent ideal (e.g., as few blacks in academia as possible).

Palooka

"If abolishing affirmative action does not eliminate white animus for blacks, then arguing that affirmative action should be abolished because it causes white animus for blacks is a silly argument."

Many defend it, especially in the context of the diversity rationale, because the believe aa results in reducing stereotypes and intolerance. If AA actually causes a net increase in stereotypes and intolerance, then I think it's rational to question the utility of AA to serve those ends.

Hypothetical: If an anti-discrimination law caused more discrimination--and not just in the short term--wouldn't it be wise to question the usefulness of such a law? It really doesn't matter if the source of that additional discrimination is old animus or not. Does it? If a law or policy is counterproductive, then it's counterproductive and should be discarded because we care about what we're trying to accomplish.

Brent

A tanned, manly Orson Welles did quite fine as Othello, thank you very much.

And I'd be great playing for the NBA. If I only could jump a little higher than three inches.

Jane Thirnbough

PALOOKA: "I don't think it's intended to be an aid for rural whites. It's intended to be an aid for rural individuals, whatever their race."

All that says is that it's a softer-form of quota that is neutral on its face. Everyone knows that giving extra points to "individuals" from rural Montana is a fancy way of saying giving points to white people.

PALOOKA: It really doesn't matter if the source of that additional discrimination is old animus or not.

Of course it does. If opposition to affirmative action is just racism rearing its ugly head again, why should we listen to it? Should Germany listen to the raging fits of its neo-Nazi population?

Read this article

http://www.nytimes.com/2005/08/28/books/review/28KOTZL.html?pagewanted=2

WaitingForGoogle

PALOOKA: "Many defend it, especially in the context of the diversity rationale, because the believe aa results in reducing stereotypes and intolerance."

This is more fancy lying. Those who claim affirmative action reduces stereotypes refer to within the classroom of elite universities, not to public opinion polls of the average citizen in the United States. Your entire argument is thus irrelevant.

Jane Thirnbough

"A tanned, manly Orson Welles did quite fine as Othello, thank you very much."

Yeah, when black actors had to play African tribesmen or be out of work.

R

WFG:

Personally, I thought Posner was clear enough on the Othello point in only a few words, but it is often necessary to repeat things here, lest they be misconstrued.

Incidentally, I agree with you on affirmative action, though your general unreasonableness makes me a wary ally.

Larry

Ah, but R, that's the point--Posner, legally speaking, may not be right. There is the legal concept of a BFOQ--bona fide occupational qualification--that allows one to discriminate in hiring. However, race, even in casting a play, is not a BFOQ (while gender may be).

There is at least a case to be made that not considering a whole race for a part is illegal discrimination. Many theatres have color-blind casting as their official policy. There may come a day when it is required. (Don't forget that actors play parts--they don't have to be the part. They put on makeup and costumes, for instance. And Othello is a Moor, not necessarily a black African.)

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