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michael persoon

Sorry for double posting.

Even in my above recount of diversity (I realize it doesn't actually say anything...unfortunate rambling, sorry!), a policy that looks to an individual's racial trait is still racist, but that does not mean it is barred Constutionally, it just means that the state must have a compellign interest and no less-restrictive means of accomplishing it. Constitutional rights are not absolute, e.g. First Amendment obscenity exception and Second Amendment in general.


I'm also confused by Becker's support of legacy admissions to college. I understand the rationale -- they're an incentive and reward for alumni who donate. Why, then, is it wrong for a college to choose to admit a quota of minorities in order to look good and perhaps elicit donations from groups interests in philanthropic minority causes? I'm confused because Becker seems to be opposing not only the legally mandated affirmative action but the principle of organizations choosing based on criteria other than merit. It is atypical for Becker, who is usually the expert at finding hidden and justifiable incentives to actions.

As for the claim the affirmative action diminishes people's confidence in minority doctors -- it sounds like an excuse for instinctive racism. A sheltered white suburbanite will be suspicious of a black doctor because he doesn't want to look past his hostility towards what he is unfamiliar with; if he wants, he can find a convenient justification for his moral laziness by blaming his fears on affirmative action.

Vish Subramanian

Mr. Becker's comments seem to be removed from experience. Have not both blacks and America been enriched by affirmative action in the Armed Services? Whats all this pablum about "searching harder for qualified candidates"?

There are serious problems with affirmative action programs in that they benefit many of thw wrong people, but surely they provided a great leg up to many worthy people.

Not Corey

BECKER: "Studies have shown that this simple implication of affirmative action applies to students at good law schools, where the average African American student ranks toward the lower end of their law school cohort."

The question I have is why we are grouping all African-Americans together. If what we are concerned with is merit, then there is no reason to group an African-American who had a 1500 SAT score (on the old test) and was in the top half or third of his or her law school class with an African-American who scored in the low 900s on the SATs and was in the bottom half or third of his or her law school class. But if we do not group them together, then we cannot come up with an average, thus there is no "average African-American student," which we should all know is a statistical fiction. If we truly believed in merit we would not even be able to attack affirmative action, because we wouldn't be unfairly grouping unrelated individuals together to produce the relevant statistics. I think the grouping itself is what is offensive and stigmatizing, not the achievement of other persons. It's a ridiculous assumption to make that any African-American cares one whit about or shapes his self-concept in response to how well other persons who are not members of his immediate family fare in academia. His attitude might be: fuck them, and fuck you; I scored higher than you on all the relevant tests, now kiss my black ass you arrogant honky.

BECKER: "However, now, minority doctors and other professionals are greeted suspiciously by many patients and customers who fear they got where they are only because they were subject to lower standards."

What a wonderful argument! White people were prejudiced, and the means to eliminate the prejudice resulted in more prejudiced white people, so we should get rid of the means to elminate the prejudice because that will eliminate the prejudice. Uh, right. You must have a better argument than this, Becker. Many white people are simply prejudiced and it has nothing to do with affirmative action programs. Affirmative action programs are not the reason why many white people find African-Americans to be less intelligent or less attractive specimens of the human species.

BECKER: "Employers, universities, and other organizations should make special efforts to find qualified members of minority groups, persons who might have been overlooked because of their poor family backgrounds or the bad schools they attended. By using this approach, one can spot some diamonds in the rough that would get overlooked."

Of course this is correct. No reasonable-minded person would dispute this. But the process of seeking out diamonds in the rough requires the kind of discretion that is inherently subjective and liable to be criticized by white special interests as "softer-forms of quotas" or "reverse discrimination". There are many conservatives -- Ed Whelan and Roger Clegg, for instance -- who would abolish even mere recruiting dinners for minorities. (They would ban free food and the handing out of brochures on the basis of race!) I would also note that elite private universities believe they are doing just this -- looking for diamonds in the rough -- by discounting some plus-factors in favor of others. The question, then, is not whether discretion is to be used, but how much. In that sense, Becker, your post says less than it pretends to.

Clarence Thomas, for one, would get rid of all discretion in private elite university admissions: not just race and legacies, but also resumes and family background. The only thing that should count are your standardized test scores and unweighted grade-point-average, because those are the only factors that are objective and thus not subject to criticism as abitrary and capricious abuse of discretion.

Paul N

Can't we let the market decide whether or not affirmative action is a good idea?

Universities and corporations, each of which chooses whether or not to practice affirmative action, are intensely competitive. If there is an economic advantage to dropping affirmative action, organizations that do so will be more successful.

My sense is that the costs (e.g. impaired quality) and benefits (e.g. better organizational reputation) of modern-day affirmative action policies are roughly balanced.


"By using this approach, one can spot some diamonds in the rough that would get overlooked."

How would a centralized planning group at a university fare at this?

Also, the diamond analogy is interesting. Some might argue there are tons of diamonds in the world, and diamonds would not be expensive given the absence of cartels and retaliation against competitive behavior. How is the next great nobel winning economist comparable to a diamond?

Noah Popp

Becker's argument seems to be based upon affirmative action working at cross purposes to a meritocracy, which he argues is economically desirable because it puts the best and the brightest in the most important positions. But what about the argument that the costs of achieving a meritocracy, or even a society that approaches a meritocracy, may be unjustifiably high?

But I will grant him this premise that a meritocracy is desireable. Certainly the best way to have a meritocracy would be to have equal opportunity, thus allowing the best to rise to the top (there would still need to be a social net to prevent someone with tremendous merit from simply getting very unlucky). Otherwise the information costs in determining who is meriticious would be very very high.

Yet, it may be, and I argue in fact is, impossible to have equal opportunity for all minorities without affirmative action. How can a minority child have an equal opportunity if his parents earn much less (whether because of discrimination or merit) than non-minorities? Thus without affirmative action, each succesive generation of minorities will have an unequal opportunity, and minorities with a given amount of talent and ambition will end up, on average, with the same income/career as a white person with less talent and ambition. If the costs of affirmative action are small enough, and if affirmative action will lead to a more equal opportunity for the next generation of minorities, then affirmative action may be efficient.


Becker and Posner both express genuine concern for countering the effects of discrimination against blacks while questioning the efficacy of AA. The left is certainly at fault for treating stands on issues such as AA and the ësocial construction of genderí as proxies for caring about race and gender discriminationóthereby halting discussion of either AAís failures or of other avenues of pursuing change.

But letís not kid ourselves that the source of opposition to AA is either its ineffectiveness or counterproductivity. The source of our opposition is our visceral sense of AAís injustice.

Palooka writes: ìAll other things equal . . . diversity of experience and backgrounds can't be a bad thing. But does it justify discriminating, on the basis of race no less, against more qualifed applicants? [sic] The civil rights movement was formulated around the concept that race didn't matter, that individuals should be "judged by the content of their character, not by the color of their skin." Yet affirmative action rejects this noble notion, instead arguing that race does matter, and that it is a legitimate basis for discrimination (if you're white or Asian).î

The apparent contradictionóthe absurdity--of using discrimination to combat and eliminate discrimination does seem like a pretty good argument against AA on its face. But, I think it is the emotional appeal that touches the core of most peopleís objection to AA: we respond to the injustice of discrimination against people of good will and good credentials in order to give their places to less qualified people because it offends our sense of fair play.

Becker makes the same appeal, with apparent inadvertence: ìA more subtle way that affirmative action harms many members of the very groups they are trying to promote is illustrated by admissions to college. If lower admission standards are used to admit African Americans or other groups, then good colleges would accept average minority students, good minority students would be accepted by very good colleges, and quite good students would be accepted by the most outstanding universities, like Harvard or Stanford.î

That is, I donít think the weight of this example comes from Beckerís concern that AA hurts those it was intended to help. The stronger message here is that AA hurts people like you and me who might have gotten into a better school but didnít because someone less qualified got our place.

And doesnít that just piss you off?

Of course, Becker and Posner both observe that blacks still do not fare nearly as well in American society as other identifiable groups. Posner writes, for example:
ì[R]ealism 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 othermeasures 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.î

Alas, what is the lot of 12% of the population with whom I do not, identify compared to the unfair treatment of even one person who is like me?

michael persoon


I think you made a bit of a hasty jump from using an AA program to find a "diamond in the roughh" to a central planning committee running things. Pure market economies and absolute sentral planning committees do not exist.

Colleges already have a sort of "central planning committee," except they are called admissions boards. They look at a wide range of traits and qualities of incoming applicants to determine whom they should allocate the scarce slot to


I agree with Becker's reasoning, though Posner's proposed exceptions are mostly unobjectionable.

I did have one question to throw out: if affirmative action is to be defended as a remedy for past discrimination, what are the appropriate metrics by which to judge the extent of its success in doing so? How do we know when 100% -- or 50%, or 5% -- of past discrimination has been remedied? It seems clear enough in the abstract that if affirmative action is an effective remedy for past discrimination there must be a time by which the remedy will no longer be needed; if it is not, it may as well be ended now. My point is only that some metric other than the satisfaction with affirmative action programs of the leadership of groups they are intended to benefit is needed.


michael persoon:

good point. thanks for the critical input.

what are your thoughts on this?

Patrick R. Sullivan

'...if affirmative action is to be defended as a remedy for past discrimination, what are the appropriate metrics by which to judge the extent of its success in doing so?'

Which opens a can of worms. Since the 20th-21st century descendants of Africans forcibly brought to America as slaves have higher incomes than the descendants of Africans who remained in Africa, which direction should Affirmative Action (or 'reparations') be going?

Abeer Reza

If one assumes that there are positive social externalities in human capital in the sense (e.g.)that children from educated parents have a better chance of being well-educated themselves (one can imagine educated parents providing stronger incentives to their children for studying harder), then this can be a ground for affirmative action.

I agree that promoting an 'undeserving' person (losely termed) over someone more deserving maybe damaging to both parties at present. But, when a social divide exists between ethnic groups, promoting the undeserving few may go a long way for future generations in dispersing the disparity.

Also, if success depends on effort (alongside merit), and discrimination forces members of an ethnic group to think that whatever they do, they can never be 'successful' in life, then that might hamper the efforts they put in significantly. In this situation, any measurement of merit would be biased. In any case, affirmative action may also increase the effort level of minority-communities as a whole -- which would also end up helping future generations of the community in a positive way.

Michael Hartl

Becker expresses a common view when he writes that he "strongly oppose[s] both
affirmative action, and discrimination against African Americans, women, and
various other groups"but then, alas, conflates the latter notion with using the force of law to
prevent such discrimination. Posner expresses a similar sentiment when he
writes that "This [government non-interference in private sector affirmative
action] by the way is not to say that firms controlled by blacks, say, should
be permitted to discriminate against whites."

Expressions of support for anti-discrimination laws are not controversial, but I'd like to suggest that perhaps they should be.
After all, an "anti-discrimination" law preventing firms controlled by blacks
from discriminating against whites discriminates against those same black business owners. If they wish, on their property and using their labor, to
serve only other blacks, isn't it an infringement of their liberty to force
them to do otherwise? Why is it obvious that they should not, under penalty
of law, be permitted to do this?

Perhaps society would be intolerable if anti-discrimination laws were
repealed. Nevertheless, I find it odd that, even in carefully argued pieces
such as these, support for such laws is simply assumed. I would enjoy reading
a vigorous and thoughtful defense of anti-discrimination laws, taking into
account the weakening of property rights and infringement of individual liberty that they seem
to entail.


Actually, almost everyone believes in the value of diversity. If the nine most brilliant, most experienced, most well-rounded, etc. etc, lawyers in the US happened to be nine Lutheran women from Des Moines, few people would want the US Supreme Court to be composed of nine Lutheran women from Des Moines. All of us value diversity on the Supreme Court (and most of us bemoan the lack of diversity there now -- can't we find someone from outside the ranks of Court of Appeals judges who is worthy to sit on the Court?). Call it "affirmative action," or call it "banana," it is a good thing to have a diverse group of people on the Supreme Court. And for similar reasons, it is a good thing, not a bad thing, to have a diverse group of people at Yale Law School, or the faculty of the local high school, or the clerk staff at the local grocery. No one has ever satisfactorily explained why it's OK for the University of Michigan admissions committee to give an extra point or two for a farm girl or boy from Idaho, but it is wrong to give an extra point or two to an African American. (Appeals to slogans like "color blind constitution" do not qualify as satisfactory explanations.)


Becker said:

"Studies have shown that this simple implication of affirmative action applies to students at good law schools, where the average African American student ranks toward the lower end of their law school cohort. My observation of many colleges and universities is that this conclusion has general applicability well beyond law schools."

I assume he is refering to studies by UCLA Professor Sander. I think there is a criticism that that can be levied against his application of this research elsewhere.

Law Schools are among the most competitive educational environments in the US. (I am not talking about admission, but competition for grades and ultimately, jobs post-grad.) So much so that Scott Turow still sells thousands of copies of One-L every year...

But, if "diversity" is to have any value, it depends on students sharing information and stories and viewpoints with each other. Students who are better in one aspect help their peers, and learn by teaching, students with uniquely relevant experiences share them with the class.

Unfortunately this is often NOT how law school works. I would expect law school to be the WORST place for trying to see a positive impact from diversity due to its extreme competitiveness. I wouldn't want to assume other (perhaps more collegial and cooperative) academic environments are just as bad. It would be interesting to see what simply turning off the strict law school grade curves would do to promote the expected benefits of diversity.


"No one has ever satisfactorily explained why it's OK for the University of Michigan admissions committee to give an extra point or two for a farm girl or boy from Idaho, but it is wrong to give an extra point or two to an African American."

Well, now that you've said that, why don't we just amend the Constitution, and repeal the Civil Rights Act of 1964! They're totally basless! Discrimination on the basis of race is perfectly rational! This is a winner. Repeat it often.



To explain the under performance of african americans in law schools, you believe it is because law schools are not fulfilling the potential of diversity because they are overly competitive. But the diversity argument does not posit any great transformation on the part of those adding to the diversity. The diversity rationale posits that all students, including those adding to diversity, will benefit on some marginal level, perhaps not even academically at all but through added sympathy and tolerance. But having this potential unfulfilled does not explain the great under-performance of affirmative action admits in law school whatsoever. Even if one posits an academic effect, the effect would presumably be among all students, offsetting any potential climb. Moreover, that effect is likely to be statistically insignificant, or perhaps even negative (a black student entering a uni on affirmative action may be less likely to succeed because of the diversity, he may feel more comfortable in social circles he is already familiar with). Historically black colleges, I believe, compare quite favorably to other "diverse" schools of the same caliber.

Maybe you're right that the strict curves and the hyper-competitiveness of law school is a bad thing, but it does not explain the under-performance of affirmative action admits.


"Even if one posits an academic effect, the effect would presumably be among all students, offsetting any potential climb."

Not necessarily. Exposure to top students who are willing to share their knowledge and approaches could help the preferenced students more. The benefit to the top student isn't substance (as they have presumably already mastered it) but rather learning a whole separate skill (teaching, tolerance of difference).

I have anecdotal evidence from talking to K-12 teachers that matching up top students with those that are behind is great for catching them up. My girlfriend assures me there is support for this proposition in the education literature. (notwithstanding the sad recent upswing in attacks on multi-culti rationales) Unfortunately this is the first week of class and I don't have time to dig up cites.

"Maybe you're right that the strict curves and the hyper-competitiveness of law school is a bad thing, but it does not explain the under-performance of affirmative action admits."

Right, I am suggesting that the admission criteria is strongly duplicative of the exam criteria so that without some change the under-performance of preferenced admits is very likely.
I've suggested some ways to fix that, like diversifying testing criteria and toning down the competitiveness to let people help each other.

What I opposed is using law schools as an excuse to reject diversity rationales in general without admitting the way that competitiveness defeats the proposed benefit.


"Not necessarily. Exposure to top students who are willing to share their knowledge and approaches could help the preferenced students more. The benefit to the top student isn't substance (as they have presumably already mastered it) but rather learning a whole separate skill (teaching, tolerance of difference)."

Well, you seem to have slipped. Are you now conceding that affirmative action admits are, in fact, underqualified relative to their peers? If you're saying diversity means that the smart kids get to help the slower ones (relatively speaking, of course), well, OK. But that doesn't do much for your insistence that the LSAT isn't measuring merit very well.


I just want to emphasize how horrible of a justification what Corey just wrote is. He is, essentially, saying that affirmative action admits are not fully qualified, and that other students will gain by this "diversity" by teaching and mentoring the underprepared, outmatched students. Uh, OK. Yet Corey is also insistent that admissions are not accurately measuring merit. Corey, when you start coming up with arguments like these, I think it's time to reconsider your position.


I have argued (effectively I thought) elsewhere in this thread that tests like the LSAT are almost by definition too narrow. (Sacrificing breadth for the sake of standardization) Given that objection, I can conced that preferenced students are "less qualified" on the narrow terms of the test and still have a coherant position. I clearly don't think they are less qualified in a holistic sense.

Test reform is one alternative to direct AA preferences. Changing the environment to encourage cooperation is perhaps another. I support AA because I think it is easier and more likely to be done than either of these things. I would have thought that the first two suggestions would be less controversial, but perhaps not. I suspect I am talking to an audience (including myself) who has done very well on current narrow standardized tests and in competitive academic environments.


Maybe the best way would be for students applying to the relatively few competitive schools is to check a box, saying they are willing to be put in a pool where the possibility exists of a favored minority with a lower test and GPA being admitted over them. Then we will see how much "diversity" is really valued. It is easier to get into a diverse school, full of moms, commuters, and minorities, than it is to get into your state's flagship, so why don't people go there? My guess right now is that diversity is over-valued, but not valueless. I once had the experience in college hanging out with about nine friends and friends of friends for almost half an hour before realizing I was the only white person. The rest of the night was a blast, playing drinking games, although not unlike nights spent with my friends that look like me.

Perhaps not a lot of people have that experience, and it was cool. Maybe if I went to a more diverse school I wouldn't have noticed at all, and that would be even cooler, and I really mean that. I don't know if it would have been worth going to the next best school in my state though. Anyway, maybe it wouldn't matter, because of the three people whose scores and grades I knew in that group, they all did better than me in high school and in college classes we took together, and those were econ classes, not happy-feeling-diviersity-is-good poli sci classes.

In conclusion, if I had to chose between AA as is and none, I would much prefer as is, there is still a lot of racist thought and deed going on, that any good ol looking boy like myself is privileged to see, from even random people on the street who think I share their disasteful thoughts and who seem so eager to share them with me. But c'mon, there has got to be a better way.

gary lammert


I am riding on a limited express, one of the crack trains
of the nation.
Hurtling across the prairie into blue haze and dark air
go fifteen all-steel coaches holding a thousand people.
(All the coaches shall be scrap and rust and all the men
and women laughing in the diners and sleepers shall
pass to ashes.)
I ask a man in the smoker where he is going and he
answers: "Omaha."

Kindly visit the Economic Fractalist http://www.economicfractalist.com/

Chicago Student

Well, first of all, "People have sex--nouns have gender". Are we talking about affirmative action for nouns?

Next off, I had affirmative action explained to me by a fellow student in college that was protesting the hiring of a white male for a top job in student govenment.

To paraphrase his words: "I grew up in Detroit and all of my friends are black, they all look and talk like me. When I choose people to surround me, I choose those with whom I am comfortable.

You, on the other hand, grew up in an affluent suburb and most of your friends probably look and talk just like you do, which is not how I look and talk.

Now you get to hire somebody. Who are you going to hire, someone who looks and talks like you, or someone who looks and talks like me? You don't have to be an overt racist to surround yourself with people who are similar to you.

That's what affirmative action is, a simple way for guys from Detroit to get a chance when all of the hiring and choosing is performed by guys from the suburbs."

I found his point to be worth taking.

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