I've often wondered why we didn't (don't) adopt affirmative action on the basis of "zip code" (or some other marker for the quality of schools and neighborhood) one attended (grew up in) before college, rather then use the ill defined and very divisive concept of "race." (As an aside: we have already seen the problem of determining who is an "indian" rearing its ugly head more and more--if the tribe under discussion has become rich on gambling money. Are Nuremberg law style definitions of who is an "X" in our future?)

Independent of the moral issue, from a pragmatic point of view: (1)Affirmative action on the basis of the school one went to or what zip code one grew up in is unlikely to be as divisive as race but (2)More important to me is that it seems quite clear that a student coming out of an inner city school with an SAT score of say 1100 has quite a bit more potential then the student coming out of Andover, with long hours of SAT prep in his or her background, who scores a 1300. And it is potential that a school should be looking for above all.


Finally, I think affirmative action on the basis I outlined would easily pass constitutional muster and would also have wider support.

There are two rationales for affirmative action. They are analytically quite distinct but in practice sometimes overlapping.

The first rationale is providing opportunities for individuals of underrepresented backgrounds. It focuses on the benefit to those individuals, as well as general �morale� (as Posner says) among members of that group. Curiously this is the only one discussed in Becker and Posner�s posts.

The second rationale, is that diversity can improve the quality of organizations or institutions. For example, diversity at universities exposes students in dominant groups and ones in certain �disprivileged� perspectives to each other. Or diversity on corporate boards of directors or among management might conceivably improve profitability or have some other advantage. (The scholar Lynn Dallas thinks so at any rate.) Here the focus is on benefits to some �community� that do not involve redress.

The first and second rationales overlap in academic settings and certain employment contexts. The latter does not seem to apply much in the contracting context.

In our affirmative action jurisprudence, the two rationales are not very well distinguished analytically. But, to the extent that they are, I believe that the latter has garnered more approval in our jurisprudence. It seems strange to me that both Becker and Posner focus exclusively on the first rationale.

Given that I am not a judge, I guess that mine is an �idiosyncratic� take on the jurisprudence. But, though I take my point of departure from that jurisprudence, I am not intending to make the kind of argument that can be dismissed by showing I�ve forgot my constitutional law. I�m just saying that, in my opinion, the second rationale is by far the stronger, especially since it thinks in terms of benefits to each and everyone (thus promoting unity) rather than to individual benefit and group grievance.

Furthermore, I think the authors� arguments about meritocracy entirely fail to address the second point. Their assumption is, on the contrary, that meritocracy is so powerfully important a concept that loyalty to it should prevent us from considering any other effects that diversity in institutions and organizations may have on our country. That seems to be a very, very big assumption and quite questionable.

[This is not to say that right wing legal economists would not differ markedly from left wing ones (if there are any) on the questions of (1) what meritocracy means and (2) if we have one. I think that they do or would, because left wing legal economics would be distinguished by a sensitivity to what effects wealth distribution may have on evaluating merit and meritocracy.]

Correction: Posner does express skepticism as to whether certain employment practices are meritocratic. My comments on that score only apply fully to Becker.

I strongly support the diversity rationale, as do many others. It saddens me that the constitutional jurisprudence (and the country) is shifting somewhat away from it.

Most meritocracy arguments mask an assumption that the "standardized" criteria used to rank-order the meritocracy are fair and complete. Wealth distribution does correlate to the results of merit evaluations. Its pretty hard to say that being poor is the fault of a kid taking the SAT, so maybe right and left can agree that wealth should NOT correlate, and think about a corrective that could apply.

After all, if we value "hard work and overcoming adversity" in America then some of the most admirable students in the country are those in the top 10% of crime/drug beset urban schools.

Becker talked about research that sugggests "preferenced" students cluster at the bottom of the class:

Other research by Prof. Henderson at my law school has shown how LSAT performance is strongly correlated to performance on timed law school exams, but is weakly or not correlated to performance on other kinds of exams (take home, non-timed, oral). In essense, a measure of merit used for admission has evolved to duplicate the measure of merit most often used for performance after admission.

That explains why students preferenced into a school might show the same performance gap in a school. But legal practice does not resemble a timed law school essay exam. There is no reason to suspect the performance gap to extend into legal practice absent discrimination there.

The diversity rationale has always been weak and it's obvious by the very actions of the people who support it that, in fact, they hardly believe in it, but grasp at it as a chance to do the kind of racial discrimination they belief is necessary to benefit society.

In fact, one of the strongest arguments against AA, though rarely made, is that it has made liberals lose their souls; they have to lie, both regularly and publicly, to pretend affirmative action isn't what it actually is, and they aren't doing what they are actually doing. They have to cling to weak and secondary research when primary research tells them what they need to know. They have to pretend that clear results are not as clear as they seem to be.

As I believe Judge Posner knows, race is not considered a BFOQ when it comes to casting for actors. (In fact, I'm not sure if sex is any more.) While lawsuits may be rare, color-blind casting is becoming more in vogue. Consider the Kenneth Branagh version of Much Ado About Nothing, where blacks and white were brothers.

All drama requres a willing suspension of disbelief. Won't this disbelief become easier as we relax rules about who can play what part. (And why does a black man look more like a Moor than a white man?)

The diversity argument should be broken down further. One rationale is that it promotes social cohesion/less intolerance, which is plausible. The other major rationale, which I don't find to be compelling at least among college students, is that it adds intellectually important perspectives that would otherwise be lacking. At the faculty level, affirmative action seems only to replace white males with women and minorities with perspectives very much like their white male counterparts. Indeed, in my field of political science, affirmative action seems to decrease the diversity of political perspectives since women and minority professors are more likely to be liberal. And the typical political science department is unlikely to be very eager to hire a conservative who is a member of a minority.

In Posner's post, there's a possible justification of AA based on making a businesses' minority customers feel more comfortable with the organization. Later, there's another possible justification of AA based on claimed improvements in functioning of an organization with more diversity.

I guess I'm puzzled about both of these justifications, because it would be about as easy to make parallel justifications for discrimination against some minority group. Presumably, it wouldn't be acceptable to anyone to have the power company say "we can't hire blacks as meter readers, because that would upset too many of our white customers." Why would it be okay the other direction, with the power company saying "we have to preferentially hire black meter readers to keep our black customers happy?" Along the same lines, a corporation arguing that it ought not to have to have any non-white, non-Christian executives, because too much diversity in decisionmaking is bad, would surely not be acceptable to any court.

"they have to lie, both regularly and publicly, to pretend affirmative action isn't what it actually is, and they aren't doing what they are actually doing."

I don't think liberals are as torn up about what they are doing as you imply. I don't know anyone black or white on either side of the debate that thinks AA is an ideal approach. I know many who think it is a necessary response to (still) entrenched societal discrimination that left alone would perpetuate a performance gap that has nothing to do with "merit".

I personally value diversity and equality of opportunity in practice more than I value sticking with otherwise good formal rules that can never be excepted. I've read Orwell and am comfortable with double-think. It doesn't keep me up nights worrying that I am endorsing a disapproved method (preferences of any kind) in order to compensate for other past and present negative preferences.

There was some good news recently that the performance gap on NAEP standardized tests has narrowed since 1971 (although it still exists). See: http://nces.ed.gov/nationsreportcard/pubs/2005/2005464.asp

Perhaps there will come a time when AA is no longer necessary as part of the program to equalize opportunity and guarantee diversity. I hope so.

I believe it likely that there have been times in my life where someone with lower test scores has been "preferenced" over me. I am sure that they were well qualified in a holistic sense and did well in the position. I welcome the opportunity to take on some extra challenge in the name of promoting equality and diversity, especially given how privileged my own upbringing was in comparison. My "backup" schools/jobs have given me as much opportunity as I might have lost. Harvard can be an unpleasant experience anyway.

Corey --

a minor point: I doubt you are qualified to say what legal practice does and does not resemble. You may be surprised to learn that tight deadlines are not a unique product of law school examinations.

On the whole, Posner's post reminds me why I think of him as a thoughtful -- though often arrogant -- jurist, and not a conservative hack. I am surprised the conservative hacks have not come to attack this post yet. Palooka?

Fred --

you make a decent post about trends in casting shakespeare. I enjoyed Branagh's Much Ado, and thought the casting appropriate.

But a white Othello does not work. Inimical to the play is the fact that Othello is a moor. In the days when Shakespeare companies did not cast African Americans, Othellos wore blackface -- that would not work today, for obvious reasons. To cast the play otherwise would be like writing Jim out of Huck Finn. It would basically destroy the play.

A black man looks more like a Moor because the Moors were of African ancestry. At least that's what I've always thought -- if not, someone correct me.

Perhaps not on topic, but important to me. Carry on.

Regarding the common argument expressed by Becker and Posner that:

"affirmative action harms the ablest beneficiaries of it by casting doubt on their ability"

Technically, AA doesn't do this, people do this. Casting doubt on ability, or lowering one's self esteem based on need for AA is just a tacit acceptance of the supremacy of the particular merit criteria (standardized tests, name-brand university attendance) that would otherwise be used. However, there is not a standardized test or school ranking system out there that does not come with books full of substantive and formal criticism.

Many people truly believe that the meritocracy tests too narrowly and undervalues many unique talents and hard work that don't relate directly to the test. If you think that, then there is no stigma attached to having less of what the test measures. You probably have more of things the test doesn't measure. For certain the test is an imperfect measure of the skills needed to succeed in the field. Much of the correlation that does exist could be attributed to people blindly following the test results as a proxy for actual qualification. (Which is hard to determine in advance) The pressure for standardization is strongly self-reinforcing.

There isn't any reason standardized tests could not be normalized by school or geographic area, or forgone completely in favor of a GPA # which reports performance relative to others WITHIN the particular environment. Tests get re-normalized all the time.

"a minor point: I doubt you are qualified to say what legal practice does and does not resemble. You may be surprised to learn that tight deadlines are not a unique product of law school examinations."

Every profession often features tight deadlines, including my former careers in Engineering and Technical Sales. My experience of lawyers so far is that they talk about the pressures of their job more than most. Perhaps that is a way of justifying the hourly rates.) But that is neither here nor there.

If LSAT correlates to 3 hour in-class exams but does not correlate to 8 hour take-home exams then there is a problem with the LSAT.

Speaking of which, I am now under a tight deadline and must go and meet it.

Judge Posner writes:

"Women, Jews, Asians, and other traditional victims of discrimination or newcomers or outsiders have all advanced to positions of essential parity with male WASPs."

I will agree as soon as an Asian-American woman of part-Jewish descent wins the Presidency (or as soon as her gender and ethnicity would not be "news" if she ran). We have come a long way in the last 50 years, but not ALL the way.

I agree with Bill's post that AA, at its premise, questions the traditional meaning of the word "merit." I suppose one's score on the SAT or one's GPA could be viewed as an "objective" measure of a student's achievement or training, to that point. But it might not be an objective measure of any person's potential. A poor kid from the inner city with a 1500 SAT is almost certainly more talented than a student with a similar score who hails from a weatlthy suburb and whose family hired the best private tutors.

However, the rich suburban kid -- even one with lower scores -- might be more polished and might well do better at interviews than an inner city counterpart. Notably, interviews are far from a "merit" based method of hiring. College admissions might be mostly a numbers game, but the "real" world is far different and offers far more opportunities for those at the top to reinforce their prejudices through the hiring process.

Also, there might be situations when "merit" matters less than other factors. Take acting, for example. The best looking actors routinely get parts even if their acting skills are inferior.

My point is that the affirmative action debate is far more complex than just comparing test scores. Unfortunately, it gets oversimplified for political purposes. The simpler it seems, the more unjust it seems, and the more willing courts will be to intervene. In contrast, when it appears to be a complex balancing of various individualized factors, it looks more like something that the courts should stay out of. Perhaps that was the lesson of Bakke.

Try as we might, the fact still remains that education, as well as other endeavors, is competitive and in any competitive environment those who are succesful or the "winners" have more talent, skill, speed, discipline, etc., etc.. Hence the need for "handicapping" (using the sports parlance) otherwise all would fall to the best and brightest. The meritocracy if you will. As the Cyclops in the Odyssey told Ulysses, we have no law here, we do what we want. My bigger brothers have all the larger caves, flocks and lands.... Is that the ideal which we desire in a democratic-republic?

The problem begins to arise when the handicapping or affirmative action or what ever it happens to be called at the time, degenerates into a form of reverse descrimination and kills off the benefits that one should receive for merit. It's all a question of balance.

David: I don't actually think that supporting AA requires questioning any received concept of merit. Many proponents of AA are strong believers in meritocracy, but want some "trade-off" between that and, say, diversity.

Not me. I happen to strongly dislike the concept of meritocracy, as I discussed on the linked URL in a post called "MeritoCRACY?". Of course, it's good to not have people getting positions through bribes or nepotism. But meritocracy implies more than that, namely that the we choose ones with the most "merit". That strikes me as vague and overwrought claim, whether we're talking about business employment or university admissions.

Here's a personal annecdote that I think well reveals the limits of the concept of meritocracy:

Right now I'm waiting to hear from a small law firm far from my and my family's home. Among the reasons that may go into my being rejected are as follows:

(1) Because I admit to having a small child far away, I appear less likely to stay at the firm in the long term than that particular firm desires for its new hire.

(2) I'm a year plus out of law school and have never applied for a law firm job. So I seem ambivalent about law practice.

(3) I would get great litigation experience and mentoring from the get go in this firm which, says one partner, I might run off to another firm with down the line. The job pays way less than I could earn in a major urban center. So, if I wanted to, I could apparently make bank on their training. This would frustrate the firm's intention of finding a long-term partner track associate.

(4) I've never lived in this area before, so they don't know how well I can know if I would like it and want to stay.

Unlike racism, these and other reasons for not hiring me seem pretty good from the firm's point of view. But could you seriously say that they have anything to do with my merit? I don't think so.

Bill Korner and Corey have a problem (I think) with using the term "meritocracy" when we actually do a very imperfect job ranking the merit of potential students or employees. But I think they're missing something. In the real world, we *never* have perfect measures of anyone's abilities or merit--that's true for juries in court cases, insurance companies offering life insurance rates, employers offering jobs--almost any decision we can make. The question is, given these imperfect measures, should we use them the same way for blacks as for whites?

There seem to be two cases of interest here: First, we may think the tests mean something different for blacks than for whites on average. That means we're not trying to get away from measures of merit, but we're trying to improve them with extra knowledge. I can't see an inherent reason this is bad, but it sure seems like it requires some evidence to make it make sense. That is, if blacks do better than their LSAT scores would suggest, that would imply an adjustment in scores to make the test better at measuring likely success in law school. (Is there any data on this?)

Second, we might override our merit measurements to accomplish other social goals (which is what most people seem to mean when they talk about AA). That seems like it's inevitably going to lead to the situation described above, where students admitted under AA cluster toward the bottom of their classes on average.

-John

J.K.: It's not that we have an imperfect concept of merit, but that no single concept could account for all the reasons that a person gets (should get) a position or not. We need (and have) a diversity OF criteria, if you will, as well as diversity AS A criterion. Some of these have to do with merit, some not (witness the recent anonymous post).

Talk of merit inevitably becomes conservative rhetoric because it paints with too broad a brush. Of course, there are more conservative approaches: advocating racism, nepotism, or flat out bribery. But those are happily falling by the way side, at least as intellectual positions.

"The simpler it seems, the more unjust it seems, and the more willing courts will be to intervene. In contrast, when it appears to be a complex balancing of various individualized factors, it looks more like something that the courts should stay out of. Perhaps that was the lesson of Bakke."

I guess you haven't actually read the Michigan cases. The plaintiff stood a statistical chance of 8% based on her LSAT/GPA combination. Had she been black or Hispanic, what do you suppose her chances were? 100%. Yes, that is indeed a "complex balancing of individual factors." NOt really. This fetish with renaming; discrimination becomes "affirmative action" and quotas become "critical mass." How does all this renaming change what is occurring, race is used as criteria, significant criteria, in the admissions and hiring practices performed by governmental actors. This new notion that aslong as there isn't a point formula then it passes constitional muster is absurd. This rationale suggests that a MORE discriminatory system can be constitutional if it doles out its injustice individually.

"I guess I'm puzzled about both of these justifications, because it would be about as easy to make parallel justifications for discrimination against some minority group. Presumably, it wouldn't be acceptable to anyone to have the power company say "we can't hire blacks as meter readers, because that would upset too many of our white customers." Why would it be okay the other direction, with the power company saying "we have to preferentially hire black meter readers to keep our black customers happy?" Along the same lines, a corporation arguing that it ought not to have to have any non-white, non-Christian executives, because too much diversity in decisionmaking is bad, would surely not be acceptable to any court."

Posner has apparently accepted the double standard. Oddly, I recall him skewering affirmative action in Overcoming Law. Maybe I remember incorrectly.

I do have some sympathy for prisons and law enforcement, which can often be a question of life and death, and I can imagine a case were a genuine "compelling" interest presents itself in those contexts.

POSNER: An obvious case is casting a black man as Othello and a white woman as Desdemona in a performance of Othello.

This is entirely and utterly wrong. First of all, it prevents actors from finding work. If a white woman can act the hell out of the role of Othello, by all means let her do it. If a black man can do a mean Desdemona, let him. Not only would the play be interesting, but it would be truer to Shakespeare's original intent than what Posner concocted. After all, his plays featured much sex-changing and transvetitism, and all of the actors in the original production of his plays were male.

POSNER: 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.

This is crap, too. There is a bad assumption here, and it's that an individual gets-along better with members within her own race than without. That simply accepts the social dimension of race as if it is natural and normative. It is neither. Presuming such is as silly as saying that white rappers should be censored because their rapping is inauthentic while ignoring that all rappers sell to a primarily white audience, so there is nothing essentially black about being a rap artist. Let white salespersons cozy up to black customers and let blacks salespersons do so too, and let the best salesperson win. Let's not ignore that many other factors may result in a sale. A white man from the South may get along better with a black man from the South than a black man from the North would, for obvious reasons: they share a regional culture.

POSNER: "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."

But is it voluntary? One could easily make that argument with regard to anything social, such as, e.g., interracial marriage or interracial dating. Except many black people "settle" for horrible mates within their race because the social pressure not to date outside of it is so severe and because the taboo of being in public with a date of another race is so palpable. It is also true that many whites do not date outside of their race for the same reason (though there is less of a loss of value in settling, because the white population is larger, so it's easier to find a mate). I doubt Posner would make the argument that gays who chose to remain in the closet while homosexual acts were illegal were doing so voluntarily; by contrast, he would say the implicit cost of engaging in homosexual acts is driving the expression of it underground (i.e., deterrence can create black markets). I'm not sure why he simply accepts that socio-racial norms are normative or that social taboos related to race are efficient. They might be efficient at driving down the incidence of miscegenation, but would anyone but a hardcore racist make the argument that such is a good thing?

POSNER: "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."

I agree that this is the only real affirmative action -- in that blacks are the only group that could plausibly said to be deserving of affirmative action. But I do not agree with Becker's critique of it:

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.

POSNER: "Without affirmative action, elite educational institutions and other elite institutions (probably including the officer corps of the military) would have virtually no blacks..."

Yeah, well, they'd have me; so fuck you. I exist.

PERSEUS: "Indeed, in my field of political science, affirmative action seems to decrease the diversity of political perspectives since women and minority professors are more likely to be liberal."

While I can't speak for your school or department, I become quite annoyed at the "intellectual diversity = more conservatives on campus" argument. Intellectual diversity may result in more conservatives on campus, but it would also result in more fascists, libertarians, Marxists, liberals, communtarians, etc. on campus too; and the political philosophy would jar dissonantly with its advocate. An intellectually diverse faculty has disabled persons who oppose the ADA and able-bodied professors who support it; gays who opposed gay marriage and straights who support it; blacks who oppose affirmative action and whites who support it: that's the kind of environment that promotes the free discussion of ideas. Simply adding more Reaganites to the professoriate or admitting more members of the Young Republican Club to college won't do the trick. Be a literal textualist about it: intellectual diversity actually means intellectual diversity.

Corey happens to be right on this one. Intellectual diversity doesn't mean making excuses to kick out the radical niggers, kikes and cunts we don't like.

How this has taken a turn toward intellectual diversity is a mystery to me, but it is very hard to ignore the censorship of "Reaganites or ... members of the Young Republicans" as well as Christians on most campuses. For evidence of this, all you need to look at is the North Carolina public university system. These universities have routinely attempted to censor Christian groups and the College Republicans and have lost every battle that has gone to court. Conservatives want to know why the Black Student Union or MeCCha can allow members to join based on race yet they can't admit based on political beliefs or religion.

You are mistaken when you assume that conservatives want more Reaganites and Young Republicans on campus; all they want is the same access to public funds and same constraints as all other school groups, most of which fall under the diversity movement. They also want to be allowed to compete in a system that doesn't discriminate against their political beliefs. If this sounds like heresy to you, check out a book by Dr. Mike S. Adams, "Welcome to the Ivory Tower of Babel", who provides his insights into the UNC system and their hiring practices. You will find that conservatives aren't just barking at thin air when it comes to intellectual diversity; they are being actively censored in an environment mostly controlled by liberals. Don't take my word for it; Adams' book presents much evidence to support his point, evidence that would have had him sued for libel if it were untrue.

Jack Spratt said: "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."

So, transport yourself to another country, in which the US ethnic differences have no importance, but there are locally important ethnic differences that have led to discrimination in favor of ethnic group A over ethnic group B. You know that group A is admitted to medical school and allowed to graduate with much lower grades and test scores than group B. Would you prefer a doctor from group A or group B, assuming no other knowledge?

Any kind of discrimination provides information to people making decisions. If some school will allow any white kid in who's minimally prepared, and will also allow exceptionally bright black kids in, then you ought to prefer hiring black graduates of that school over whites, because the discrimination process has given you some extra information. The same thing is true when the discrimination goes in favor of blacks, right?

A white woman playing Othello comes in no way closer to Shakespeare's "original intent" -- whatever that means.

It might make for an interesting, perhaps comic, performance. Or maybe an interesting serious performance. But theater directors ought to have the choice of selecting only black males for the Othello role, and white women for the Desdemona role, since that is the race and sex of the characters in the play as written.

I don't care very much about affirmative action, but I do about Shakespeare.

Whatever happened to the days when every student was confronted by their Academic advisor on their first day with, "Well, according to your records you're a graduate of an accredited State High School and we have to accept you, but that doesn't mean we have to keep you." Clearly, many are now being kept. Oh that's right, PC has overwhelmed the campus. ;)

"That is, if blacks do better than their LSAT scores would suggest, that would imply an adjustment in scores to make the test better at measuring likely success in law school. (Is there any data on this?)"

I cited a relevant study in this post above:

http://www.becker-posner-blog.com/archives/2005/08/affirmative_act.html#c063953

Prof. Henderson's research suggests that LSAT predicts performance on the most common type of law school exam well, so by inference people who are preferenced in would need to be preferenced on exams as well or the "cluster towards the bottom" effect is likely. However the LSAT does NOT predict other types of exams well.

Of course _expanding_ AA beyond admission would be radically unpopular on all sides. I suggest that there is a better way: simply diversify the type of exams. Not only will that broaden the scope of education, it would give more people an opportunity to take a test that fits the approach they have mastered. Schools that serve different neighborhoods and socio-economic classes often have radically different curricula.

Diversifying law school exams would cause the LSAT people to think about diversifying their test, since their goal is to sell a correlation to law school performance.

Using more diverse merit criteria is bound to flatten the performance curve, which will annoy the law firms. They are seeking a correlation between law school performance and job skills. But this is the area where meritocracy breaks down anyway, because students, professors, and firms often agree that law school doesn't teach law practice.

Ultimately, we need to admit that there is more to success than scoring well on a test. Adding "diversity values" into the merit criteria is the first step towards that.

Indeed, school does not teach practice; practice teaches practice. But throwing around words like "diverse" and "holistic" when referring to education is a warning sign of silly, soft, useless, relativist modern education principles.

Why do black students "crowd toward the bottom" on LSAT scores and timed exams but not on the other "diversified" means of evaluation you hint at vaguely? Is this indicative of a shortcoming in the LSAT, or a shortcoming in the methods used to grade non-timed and subjective exams?

Plenty of other parts of the application besides standardized test scores should and do play a role in why a school selects a student; even a 1600 on the old SAT would not have given you a lock on undergrad admission to an Ivy. But the standardized test itself should be rigorously objective, the one part of the application in which all people's ability in something can be compared quantitatively. If it starts involving holistic scoring and rubrics and evaluating that candidate as a _person_, not just some faceless test-taker, it loses its objectivity.

Why do schools with different socioeconomic backgrounds have radically different curricula? Students should be taught proficiency in reading, writing, and math, not in being cooperative group-workers and receptive accepters of differences in chemical imbalances. There is nothing 'holistic' or 'diverse' about basic skills; they are same in all communities and essential for everyone.

As someone who has benefited from standardized tests, I admit that they test one thing: proficiency at standardized tests. The SAT tests a certain amount of basic knowledge, but the LSAT tests 2 things, basically: deductive reasoning skills and speed. The former is important to proficiency at law; the latter is somewhat less important, though it is important to taking 3-hour law school exams.

Many people argue that "speed" is highly correlated with intelligence. So the LSAT is, basically, an IQ test. Of course, as with any test, practice and familiarity with the subject matter can improve one's score. So an LSAT score is a composite of one's IQ and one's familiarity with solving problems of deductive reasoning.

The current system of LSAT tests and law school exams helps a certain class of people rise to the top: those with a capacity to memorize a basic set of legal rules and apply them, quickly, to analyze problems. This is probably the same subset of the population that scores well on Jeopardy. It's not necessarily the subset that wins nobel prizes or becomes the leaders of government or the captains of industry.

To me, the LSAT and law school exams fail to test three things that are very important in law practice, or in the practice of any field: creativity, "judgment," and social skills. The exams reward humans who process information like computers. But computers do not necessarily have any sense of right and wrong, they are decidedly uncreative, and they can be socially awkward. The process that makes someone editor of the Harvard Law Review does not necessarily produce the best all-around leader or thinker. Sometimes those with the most to offer the world, in the long run, are more reflective and creative and a bit less precise. But we can measure computing skills objectively, so we do.

I apologize that this post has nothing to do with affirmative action.

"If it starts involving holistic scoring and rubrics and evaluating that candidate as a _person_, not just some faceless test-taker, it loses its objectivity."

That is a fair statement. I would point out that I am more than willing to sacrifice some narrow formal objectivity in the hopes of getting a broader look. As I said, the pressure for standardization can be self-reinforcing. You almost have to exclude things like (as David mentions) "creativity, "judgment," and social skills" in order to achieve objectivity. Those things are a matter of common discretion.

But non-objective factors DO contribute to success, I would hope we can all agree on that.

We are to the point now where few people can imagine our system without standardized tests, but they were not always so prominent (think of the old apprentice system of law.)

This does relate to AA in the sense that AA is trying to correct a performance gap on a test that (some say) would not have a gap if it properly valued "non-objective" factors.

But you are still missing the point. Are there not many factors on an application besides the standardized test? Can we not define them as more subjective and often useful measures of merit? De-objectify standardized tests, and you make them lose what use they have. Just look at the new SAT. The SAT's inability to judge somebody's moral character does not invalidate their ability to judge certain thinking skills.

I would question the relevance of sickeningly nice words like 'creativity' to law school. Very few lawyers go on to do anything unique, or nobly defend a great legal cause. Many are stuck in office jobs that involve much knowledge of obscurity and repetitive, meaningless machine-like behavior. Imagining that it's law schools' job to select and develop those who are going to go on to be 'great leaders' is decidedly romantic. For the most part, their job is to spit out people with law degrees.

Those with the potential to be great will likely have the initiative and natural creativity to do so regardless of whether or not they are accepted into an Ivy-level school. Such schools can undoubtedly aid them by providing some of the best professors in the field and the best connections in the profession, but the schools cannot, will not, and probably should not mold every student into beautiful individuals with sound moral judgment and a desire to change the world.

The intangibles that make people unique should, indeed, be cultivated -- but parents and the individuals themselves are far more able to do this than can schools. It is up to the student to do something creative with his rather dull law eduction. When the teachers start attempting to 'diversify' and be 'creative' to reach all 'learning styles' and all that other modern relativist nonsense, they lose focus of the basics that are so essential to building a decent thinker.

There is a testing gap because inner city schools and inner city culture do a terrible job of teaching. Period. 'Diversifying' curricula to get around this fact only distracts from our obligation to improve these people's education.

Question: What exactly does "diversify the type of exams" mean?

"But you are still missing the point. Are there not many factors on an application besides the standardized test?"

Yes but everyone knows that test scores are the most valued. You can thank US News rankings for that. Any school that uses those other factors too heavily risks dropping in the LSAT/SAT/GRE weighted rankings.

"Very few lawyers go on to do anything unique, or nobly defend a great legal cause."

To my mind that is a great argument FOR valuing creativity in law schools. People still secretly like romantic notions. If the schools can select for and/or teach this then I definately think they should. I know you have noticed that the legal profession is often criticized these days.

"'Diversifying' curricula to get around this fact only distracts from our obligation to improve these people's education."

No, diversifying curricula admits to differences in experience and background and stops the tendency to believe that all students must conform to a single standard in order to be judged worthy of success. You seem to be equating "diversifying" with "dumbing down". There is no reason that trying multiple approaches in the hopes of reaching more students means that any of the approaches have to be less rigorous. All it means is the students that do best on the current approach will face some new challenges. To them it might be even more rigorous.

"What exactly does "diversify the type of exams" mean?"

More take-home exams, different time limits (to allow deliberation), higher % of grades based on class participation, including a mix of question types (objective, issue spotter, essay)... the point is that at least for law schools, the strictly-timed-issue-spotter exam is both the most popular and the most duplicative of the LSAT. Therefore, that type of exam is most likely to perpetuate any LSAT "performance gap" (and its popularity worsens the effect).

Diversifying _is_, 97% of the time, dumbing down or wasting time. On the silly notion that people from different backgrounds need to be taught differently to learn the same basic skills, read this study:
http://www.aft.org/pubs-reports/american_educator/issues/summer2005/cogsci.htm
The effectiveness of teaching styles rely on their appropriateness to the subject, not to the student's 'learning style'.

A lack of rigor usually accompanies 'diversification' because of the silly ideas that everybody is a beautiful hard-working successful individual in his way. You'll find more teachers at one 97%-white middle class suburban schools advocating nonsense about the need for varied teaching styles than you will at all inner city schools combined. Schools such as that do not have time for the asinine waste that is most modern education.

Bill - I don't think that Corey is advocating "new math" or standardless testing. He is merely arguing that issue spotting exams test too narrow a range of skills. I understand the importance of issue spotting, and such exams are also fairer, in a sense, because they can be graded more "objectively" than free-form essays. But there is also a good argument that law schools, especially the top schools that are training the future leaders of the profession, should have a broader outlook.

Maybe the answer is that seminars and independent studies give students the opportunity to do that broader type of work, while first-year classes are more akin to Algebra I, which should be objectively graded. On the other hand, much depends on first-year grades (law review, clerkships, second-summer jobs, etc.). I do think that the legal profession places too much emphasis on (1) where someone went to school and (2) what were his/her first-year grades. Even second- or third-year grades really don't say much about someone who is 10 years out of school. I find it rather amazing that the rank of one's law school, or one's performance in law school, continues to matter so much throughout one's career. The academic world is particularly guilty of attaching too much value to these factors. Maybe it's because many academics never practiced law (beyond their clerkships) or practiced for only a few years and never accomplished much in the "real" world.

Just to second that with an anecdote: I am in law school after a successful 8 year career as an Electrical Engineer. I am currently doing on campus interviews for second year internships at large law firms.

I have been asked about my undergraduate GPA (from 10 years ago) 4 times. I have been asked about my many years of substantive work experience ONCE. I had to try and remember that far back and ended up bringing letters from VPs and Chief Scientists at the companies I used to work for hoping to offset this focus.

Its pretty unbelievable that my grades when I was 18 would be used to rank-order me now that I am 30, especially given my "non-traditional" path. This is a direct result (I think) of over-emphasis on "quantifiable" factors. I'll be OK, as a white male that looks good in a suit I have many unfair advantages, but my experience illustrates an irrational result of being too "objective".

Judge Posner’s defensible areas vis-à-vis affirmative action are not particularly convincing. Area no. 1 is clearly what will happen in a meritocratic society (without affirmative action laws) – hire the person who is best for the job. Similarly, area no. 2 is largely a rationally response to business needs, including the extortional demands of affirmative action laws. In my view, those who seek out a black or a woman or a white person to fill a position they believe a black, a woman or a white person would be most suitable is practicing free choice rather than affirmative action.

In area no. 3, Judge Posner singles out blacks as a particularly worthy of affirmative action because they, as a group, are far worse in many respects. I agree with the need for special attention, but affirmative action (quotas) is, nonetheless, not the right prescription because of the harm (see Becker’s comments) far outweighs the narrow and superficial benefits. Where I am in strongest disagreement with my hero Judge Posner is his notion of “the court (should not) strain to intervene on the side of majority rights.” In a free society we compete as individuals (or voluntarily formed groups), a white male who lost his college admission or job promotion as a result of legal discrimination can hardly take consolation that white males on the whole fare far better.

Judge Posner’s last point about the cost of affirmative action in a non-meritocratic sphere being “not great” may be true. The problem I have with it is that even though all the non-meritocratic influences, such as political, nepotistic or simple lack of efficiency do exist, they are subject to a combination of legal and economical pressure, affirmative action, or rather the current legal interpretation of it, is a legally protected, self-perpetuating inefficiency.

Corey, I think your problem is more with rankings than consideration of undergraduate GPA. Though getting good grades in a hard major is a plus, getting mediocre grades in hard major is a negative compared to good grades with an easy major. This is the result of schools playing the numbers games with rankings more than anything. Work experience can really set apart a student, but an admissions committee will only make so many exceptions for those kind of plus factors, because they have to keep their 25/75 percentiles up.

Corey, that does strike me as unusual for interviews for jobs, however. I would think work experience and your performance in law school would be the most relevant factors in your case.

But theater directors ought to have the choice of selecting only black males for the Othello role, and white women for the Desdemona role, since that is the race and sex of the characters in the play as written.

This, of course, is as nonsensical as saying that only female roles should be played as women. But during Shakespeare's time, all the female roles were played by men. Likewise, no Moors played Othello in the original productions. If you think a female playing Desdemona is truer to Shakespeare as written, you don't know jack about Shakespeare. If you think an actual Moor playing Othello is truer to Shakespeare as written, you don't know jack about Shakespeare. Why performing Shakespeare the way it was originally written would be comic to you is beyond me. As least historically, Othello has neither been played by a black nor Arab actor. The first time such occurred was in the 1950s, if I do recall correctly -- and it was controversial! More recently, Patrick Stewart headed a production of Othello where he was Othello and the rest of the cast was black. It debuted at the Kennedy Center, if I recall, to critical acclaim.

For someone who says he cares about Shakespeare, you don't seem to know very much at all. It seems you are not a Shakespeare purist, but a purist of another kind altogether.

IDIOT: "So, transport yourself to another country"

No.

JACK SPRAT: "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."

I don't mean to jump in the middle of spats, but, John Kelsey, I think, mis-quoted Jack Sprat by leaving out the above. I have been mis-quoted on here more than once, and I don't think it is fair, especially when the person mis-quoting you is trying to insinuate that you cannot form a cogent argument because you are blinded by your racial animus. I'm not sure why John Kelsey would sink to such a low-level to insinuate that Jack Sprat cannot reason (and to condescend to him so furiously), but I think Jack Sprat's quote (which I cut-and-pasted here) does much to explain John Kelsey's post.

And, no offense, but how in God's name did we get into Shakespeare?

JOHN KELSEY: Any kind of discrimination provides information to people making decisions.

The Nazis garnered much medical information by torturing Jews, which they believed to be subhuman. Under what conditions is it ethical to use it? Whenever anyone can make a claim of benefit? When should we not use it? Whenever any Jew complains? Answer that, John Kelsey.

JOHN KELSEY: Would you prefer a doctor from group A or group B, assuming no other knowledge?

Let's say it's 1990. Your doctor graduated from Yale in 1960, when Yale did not admit any women. Your doctor also happened to be a legacy, whose father attended Yale when it actively discriminated against black applicants (say, black veterans seeking an education via the G.I. Bill). In other words, your doctor's medical degree was paid for by money gained by unfair advantage (less competition to enter graduate school when blacks were actively discriminated against), and was earned unfairly (less competition to enter graduate school because no women were allowed to apply). One might say that someone shielded from full and fair competition is not necessarily the best candidate. Does the fact that your doctor benefited from racism and sexism impel you to refuse his medical services? or do you not even think about that fact that by paying your medical bills you subisidize racism and sexism after the fact, John?

JANE THIRNBOUGH: And, no offense, but how in God's name did we get into Shakespeare?

Posner was the agent provocateur.

"There is nothing 'holistic' or 'diverse' about basic skills; they are same in all communities and essential for everyone."

Why are we assuming that blacks lack basic skills simply because they are black?

Given that I've caused a stir, I suppose I should put my own two cents in.

Putting aside whether affirmative action is a successful remedy, the historical fact is that affirmative action was fashioned as a remedy to pre-existing discrimination against blacks. That pre-existing discrimination was not an abstraction; actual white people hated actual black people. The root causes of that racial animus were not caused by affirmative action, because the racial animus antedates the remedy. To argue otherwise would be as absurd as saying that Southerners only began publicly to express animus toward blacks after the Civil War, or that the 13th Amendment caused blacks to be enslaved. The racial animus not only antedated affirmative action, but it postdated it as well; as the Congress recently noted, lawless public lynching by white mobs continued well past the passage of the Civil Rights Act. Majority opinion amongst whites that race-mixing is wrong persisted until the late Eighties. Unless one believes that no white people in the nation today share the same racial animus that has historically afflicted this country, then we agree that this racial animus -- which, though now detached from the apparatus of government and not en vogue in academia, is social and public -- is still extant. Getting rid of affirmative action will not get rid of this racial animus, because affirmative action is not the root cause of the racial animus. It never was.

What I have just said is neither controversial nor is it inapposite to historical fact. I suppose one could deny it, but one could also deny the Holocaust. Just to make things easier, if you disagree with my analysis, just write a one sentence reply:

"I am a Holocaust-denier."

Any takers? John Kelsey?

P.S. I doubt anyone will bite. After all, such comments are totally inappropriate when made against Jews (as they should be), but, somehow, wholly appropriate when made in regard to blacks. (Not to mention that anyone who criticizes this phenomenon is 'playing-the-race-card'.) I daresay racial animus plays a role. But, hey, what do I know? I'm a nigger, right, John Kelsey?

"Why are we assuming that blacks lack basic skills simply because they are black?"

I don't think we are, I am certainly not. On average, there is a difference in performance on standardized tests (like the SAT) for blacks. It is a demonstrable fact. Of course that says nothing about individuals, many of whom get tremendous scores. The average gap is almost certainly influenced by socio-economic class and by still entrenched discrimination, but apparently the gap is shrinking, which is great.

But a gap in performance on a test only implies a gap in basic skills if the test measures basic skills. Given the lengthy criticisms of just about every standardized test out there, we shouldn't assume they do that well.

I also want to respond to this part of Posner's argument:

"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."

Posner once again displays his irrational bias against the public sector. From what I have observed, the private sector is no less "political, nepotistic, slack, and inefficient" than the public sector.

Of course, it would be nice to see a scientific study of this. If there were, I think the radical free-enterprise set would be in for a shock. The public sector routinely does more for less money than the private sector could ever imagine. I point again to the value that the public sector gets from Judge Posner, for instance, or from Assistant U.S. Attorneys, FBI agents, military personnel, and other gov't employees who are underpaid and have inferior resources but do consistently excellent work. And, anyone who says that politics and nepotism don't play a large role in the private sector is blind to reality.

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. My 2 g uncle ended up being shot in the head at Atlanta while with Gen. Dodge although he survived. Another, lost a leg at Knoxville, while my 2 g grandfather was wounded and captured at New Market and near starved to death at Libby Prison. From which he never really recovered. All in the name of the Black man.

C'mon quit whining, you guys wee emancipated years ago. Get with the program.

But there are three areas in which preferences that are often (though not necessarily correctly) described as affirmative action seems to me defensible:

At the international level, ethnic homelands (countries that exist to grant or deny certain privileges on the basis of race or ethnicity) are often justified by the same reasoning that is used to justify affirmative action in the United States.

While affirmative action in the United States seems rather benign, ethnic homelands have done and continue to do some really nasty stuff. There are two ideas that I take issue with specifically: that justice should be dispensed on a racial level and that victims are entitled to compensation from society in general.

That is not to say that I am opposed to dispensing justice on an individual level - I just see no reason for (and plenty of reasons against) dispensing justice on a racial level. There may also be circumstances where it is appropriate for the victimizer to compensate the victim but, while society may have an obiligation to prevent people from becoming victims, it does not have an obligation to compensate victims generally.

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

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.

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.

"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.

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

"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.

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.

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

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.

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?

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.

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."

"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.

"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".

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.

R,

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

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).

"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.

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.

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?

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

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.

"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.

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.

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.)

I think we have beleaguered the point, Larry. Which won't stop be from beleaguering it further.

It is my understanding that the Moors were of African ancestry. More to the point: I have read no case stating that race is not a bona fide occupational requirement for certain theatrical roles. The fact is, directors tend to cast black actors to play black roles. If they don't do that, it is an aesthetic decision -- there's no taking the race of the actor out of the dramatic experience.

Actors play parts, yes. But it is rare for an actor of one race to convincingly portray a character of another. Where a director casts a black hamlet the audience thinks: ok, in this "Hamlet" Hamlet is black. It doesn't think: Hamlet is really a blonde Dane. Audiences don't reimagine the image of the actor.

A black Hamlet can work, and I understand why a director would choose to cast one. In most of Shakespeare's works, you could do "colorblind" casting with fine results. We have to suspend disbelief so much already in Shakespeare -- brothers can be of different races and it doesn't really matter.

But race is important in Othello, and you can't cast it without thinking about the race of the actors. The fact that Othello is of a different race than Desdemona -- and Iago and all the other characters -- is important. Something is lost if you fail to preserve that dynamic.

There are other plays where "colorblind" casting would be even more absurd. "A Raisin In The Sun" comes to mind. I can't imagine that the constitution requires a director to cast "A Raisin In The Sun" in colorblind fashion. If you've read a case stating so, I'd sure like to see the cite.

Sprat: yes, I am a resident of crazy town.

R: "The fact that Othello is of a different race than Desdemona -- and Iago and all the other characters -- is important."

That need not dominate the casting decisions. In fact, if both actors were white, but Othello clearly is treated differently, the fact that he has the same skin color as everyone else in the play might call attention to the arbitariness and unfairness of the nonsensical distinction being made.

I would also note that a Moor who originates from Northern Africa is not likely to be the mirror image of a sub-Saharan African. One could cast a realistic "Moor" who looks no more swarthy than the Italian characters -- which makes one wonder why you believe that skin color is vital to the play. It may be true that Othello is treated differently, but it is the treatment and how that affects his self-concept -- not his skin color -- that is important to his role. The mere knowledge that he is a Moor is what sets him apart socially.

That should be rather clear from the fact that blacks who "pass" as whites are (historically-speaking) treated quite different once they "acknowledge" that they are black. Case in point: Plessy v. Fergueson.

wickipedia indicates that there were both lighter skin and darker skin moors. The play itself refers to Othello as a "blackamoor" and there are numerous taunts uttered by Iago, referring to Othello's dark skin.

I'm not going to quote you these taunts from the play, but they are there, as are numerous other statements indicating that Othello is a black man. None of this means that Othello must be played by a black man -- but it means that Othello's race is a part of the play, and I don't think any casting decision could be made ignoring that issue.

If Othello, in the play as written, is not darker than the other characters, I don't see why he would be constantly referred to as such.

At least -- even in crazy town -- nobody disagrees with my "Raisin in the Sun" point yet.

"If Othello, in the play as written, is not darker than the other characters, I don't see why he would be constantly referred to as such."

Because he has lower social status.