Affirmative Action--Posner's Comment

I have a slightly kindlier view of affirmative action than Becker does, though I agree with most of his points: specifically, that affirmative action harms the ablest beneficiaries of it by casting doubt on their ability; that it places many of them in situations in which they are bound to fail or cluster at the bottom because they have been admitted to a school or given a job that is above their level; and that remedial education is unlikely to be effective after early childhood. But there are three areas in which preferences that are often (though not necessarily correctly) described as affirmative action seems to me defensible: 1. Situations in which race, sex, ethnicity, etc. is a legitimate job qualification. An obvious case is casting a black man as Othello and a white woman as Desdemona in a performance of Othello. A subtler case is making sure that in a prison or jail the vast majority of whose inmates are black there are some black correctional officers in supervisory positions; this is important for alleviating racial tensions. (See my opinion in Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996).) I would go further and say that if an all-male prison wanted to hire just male guards, or an all-female prison just female guards, I would permit this, although the courts disagree. 2. Situations in which a private firm or other private entity practices affirmative action in response to customer preference or to ward off adverse legal action. A firm that sells primarily to blacks might want to give a preference to black applicants for sales positions or insist that its advertising agencies include black models in their advertisements for the firm's products. Similarly, if a firm fears that it will be sued for discriminating against blacks, it should be allowed to favor blacks in hiring in order to reduce its legal risks. These are situations in which affirmative action is prima facie efficient because it is being adopted voluntarily by a private, competitive institution, presumably as a profit-maximizing, cost-minimizing response to competitive pressures. (Of course not all private institutions are commercial, but the noncommercial ones, universities for example, do face competitive pressures and do need to economize.) I don't think government should interfere with such choices. This by the way is not to say that firms controlled by blacks, say, should be permitted to discriminate against whites. That would not be affirmative action, which refers instead to discrimination in favor of the group that controls the discriminator. 3. Situations in which the only beneficiaries of affirmative action are black. Most of my examples of affirmative action have involved blacks rather than women, Hispanics, etc. My reason for that choice is that realism requires recognition that blacks are, for whatever reason or combination of reasons, in far the worst position, so far as health, prosperity, educational achievement, intermarriage, and other measures of success and integration, of any other major group in American society. Women, Jews, Asians, and other traditional victims of discrimination or newcomers or outsiders have all advanced to positions of essential parity with male WASPs, but blacks have lagged badly in relative terms. A situation in which 12 percent of the population is lagging badly behind the rest of the population is not healthy. I don't think affirmative action for blacks does much to promote their integration and sense of belonging in this society, but it probably does a little (notwithstanding Becker's correct point about the negative effect of affirmative action on self-esteem). Without affirmative action, elite educational institutions and other elite institutions (probably including the officer corps of the military) would have virtually no blacks, and this would underscore the gulf in achievement in a dramatic way that would be potentially harmful to social peace. Colin Powell was a beneficiary of affirmative action and his well-deserved public success and prominence is probably good for black morale. Category 3 is perhaps the only "real" affirmative-action category. Such a classification would be consistent with Becker's treatment. What is unfortunate is that although the only real case for affirmative action (outside my first two categories) concerns blacks, naturally other groups, seeing the potential benefits of discrimination in their favor, have climbed on the affirmative action bandwagon, often with ludicrous results, notably in the case of white, well-to-do, accentless, fully integrated Americans of Hispanic ancestry. I well remember a conference I attended at which a law professor named Delgado advocated affirmative action for persons of color, among whom he counted himself. However, as if often true of persons of Spanish ancestry, his black hair crowned a very pale face. He was in fact the whitest person in the room, had no foreign accent, and by his presence had in effect converted "people of color" into a purely political category. So I would like to see affirmative action confined and diminished, but I would not press for its abolition. I especially would not favor judicial abolition in the name of equal protection of the laws. Not that a powerful legal case can't be made; but it seems odd that the courts should strain to intervene on the side of majority rights, since the majority should be able to protect its interests in the democratic political process, without having to run to the courts. In addition, it is doubtful that the courts could effectuate a ban on affirmative action. As Becker points out, states have tried and failed, since such a ban can be circumvented in a variety of ways, such as by reducing or eliminating the weight given to meritocratic criteria in selecting for colleges or jobs. One final point. Given my category 2 above, the problematic area of affirmative action is largely confined to government employment, public universities, public contracting, and other government activities. In many of those activities, personnel practices are not meritocratic, but political, nepotistic, or simply slack and inefficient because of lack of economic incentives. If criteria are not meritocratic to begin with, injecting affirmative action may not reduce efficiency. I infer that the aggregate social costs of affirmative action probably are not great--though neither are the benefits.

Comments

[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.)