Becker's argument is fine. But then one can go on to ask why affirmative action, rather than other policies, might have been adopted as a strategy to address racial disparities in employment and education. Part of the answer could be that affirmative action imposes large costs on only a few -- the better qualified applicants who are denied the positions they merited. Everyone else pays a cost when less deserving individuals fill slots that are in demand, but these costs are hidden and probably small. Affirmative action, then, is a relatively cheap way for society to pretend to address racial disparities. Becker's preferred methods, like better early childhood education, are more expensive up-front than affirmative action, which requires little tax money because the costs are chiefly borne by private individuals. Viewed from the standpoint of distributive justice, affirmative action seems terribly unfair and also rather cheap.

Leftists can endorse this view: see Michael Walzer's discussion on "the reservation of office" (quotas) in Spheres of Justice.

On my view, 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 context of preferences in awarding contracts.

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.

Given that I am not a federal 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, specially 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.]

[S]ome states... admit applicants to state universities and colleges if they rank in the top 10 per cent of their high school class. This is disguised affirmative action because schools with favored minority groups typically have much worse students than other schools, so it is considerably easier to rank in the top 10 per cent of the lower quality mainly minority schools.

This practice is not merely a disguise since it does improve on straight race-based affirmative action in a couple of ways. First of all, anyone is free in principle to benefit from this kind of affirmative action by moving to a poorer school district. But I suspect almost no parents would consider that to really be in the educational interest of their children, which leads to the second point, that "school attended" is probably a better indicator than "race" of which students are disadvantaged and (arguably) in need of special consideration. And third, this practice only has an effect so long as there is an existing difference in quality between schools; it would have no effect merely because some school had been harmed or deprived in the past.

I also observe that, for better or worse, geography-based affirmative action is a feature of our system of government. (Rhode Island gets two Senators regardless of whether they are more or less well qualified than the other Senators.) If a neighborhood is entitled to send a certain number of representatives to the state assembly, it doesn't seem so strange that it should be entitled to send a certain number of kids to the state university.

"I’m just saying that, in my opinion, the second rationale is by far the stronger, specially since it thinks in terms of benefits to each and everyone (thus promoting unity) rather than to individual benefit and group grievance."

Except nobody really believes the diversity rationale. Why aren't they looking at promoting religious or political diversity if they really buy into this "diversity" sophistry? That and the idea is kind of racist. Black people apparently have a certain perspective and white people have another, and Jewish people yet another. Oh, and we all know Hispanics have something nobody else can bring to the table. That or one thinks diversity of skin color is beneficial per se. I am sure the sight of brown and black skin of various hues warms the heart of many professors. That is reason enough to keep it--aesthetics.

"That seems to be a very, very big assumption and quite questionable."

What seems to be a big assumption and is quite questionable is that diversity has any educational benefits whatsoever. In addition, it is quite racist. Maybe before buying into this "compelling" state interest, you know, you might offer some evidence.

Jews comprise approximately 2% of the population but make up 25% of the nation's law professors. In the name of diversity, are you willing to engage in discrimination against Jewish law professors in employment? I would hope not. But if you take this "diversity" business seriously, that is precisely where it leads...

Richard Mason makes a good point. Anything which targets the disadvantaged more efficiently than the current system is a major plus. I don't get the justice of sending a black kid with professional parents to Harvard before a poor white kid from rural America. What horrible injustice is affirmative action correcting by that? Oh, yeah, diversity of skin color comes before diversity of subtance.

Please don't bring words like "diversity" into this argument. The multiculturalism and diversity movement argument holds no water. It is the last resort of the moral relativist. The belief is that people coming from different backgrounds with different worldviews and cultures can more aptly solve problems. I think that view is completely bereft of intellectual rigor. It is always the best ideas that win out in the marketplace of ideas. Why do we suddenly need diversity to ensure good ideas, when we did just fine without for, oh, 50,000 years?

"Except nobody really believes the diversity rationale."

Yes, I really believe the diversity rationale.
many of my friends and associates around the world do as well. I am more interested in diversity of viewpoint but I am also willing to use race, gender, sexual orientation, religion, class, or geographic origin as a proxy for "will have a unique outlook" because it seems to work in practice.

"It is always the best ideas that win out in the marketplace of ideas."

Hate to point this out, but the marketplace of ideas is diverse. (Though individual forums may be rigorously self-polarizing)

So far every commentator on this side of the blog including Becker has missed an important possible grounding for Affirmative Action. If we agree with Posner that African Americans face a disadvantaged position on average vs. other races, then there is also a problem with standardized tests or any other "meritocratic" measuring stick that is applied to both groups equally.

The LSAT does not correct for the experience of growing up with fewer books in the house and more crime on the streets. The children who live in these impoverished urban areas can not be blamed for their environment. Yet they are judged on the test in exactly the same manner as people who didn't face those extra challenges.

I doubt that anyone here would disagree that growing up in the Bronx or East LA has a negative effect on one's education. Therefore it has a negative effect on one's test scores. The test is NOT "standardized" because it does not take that into account.

So Aff. Action programs DO take the no-fault environmental disadvantages into account.

"so it is considerably easier to rank in the top 10 per cent of the lower quality mainly minority schools."

I couldn't disagree with that statement more. The top ten percent in those schools represent students that have worked hard, overcome the environment, and bettered their fellows. If you had started them in the "higher quality" school they might still be in the top 10%.

If you take a more holistic view of "performance", then a top student is a top student. The top student in Watts might excell at thinking under pressure and distraction, the top student at Phillips Exeter might excell at differentiating brands of Khaki and formally deconstructing arguments. I'd rather have the Watts kid working with me.

So in a way, Affirmative Action is a necessary result of the narrow "standardized" way that Americans define their meritocracy. In order to generate standardized evaluation criteria, we narrow the evaluation and end up preferencing certain kinds of success.

"What seems to be a big assumption and is quite questionable is that diversity has any educational benefits whatsoever. In addition, it is quite racist. Maybe before buying into this "compelling" state interest, you know, you might offer some evidence"

I learned a great deal about poverty, homelessness, and their effects from talking to people living those things. As a result I am often struck by how little commentators seem to know about the issues when they pontificate from their air-conditioned homes and studios.

All I know about how to be a good leader/manager in an office environment was learned from an Iranian boss who frequently incorporated references to Eastern culture.

My girlfriend reports that classrooms with mainstreamed "special needs" children are more sympathetic, supportive, and helpful to each other than classrooms without. It is a common goal of elementary educators to instill these character traits.

The most interesting days in law school were the ones in which 10 or 20 students spoke up with their alternate interpretations.

You will doubtless attack my evidence as anecdotal. Perhaps when you do you will include some evidence in your preferred format.

Becker is right on to say that aggressively prohibiting discrimination and spending to help children at an early age is the ideal approach.
That isn't an argument against Aff. Action though if it can be shown that Aff. Action is also beneficial.

But Corey, that is exactly the point. Affirmative action is not beneficial. Read Thomas Sowell's compendium on it. He engaged in original research on affirmative action, not just here but in its manifestations in Malaysia and China and other countries, in addition to black students at Cornell. His research shows affirmative action places minority students in environments that are not suited to their academic skills, pretty much exactly what Dr. Becker said, and that if we got rid of affirmative action, you would see black graduation rates rise. His theories have been shown to be correct in California public universities.

Also, what do you mean by "beneficial"? More minorities graduating with degrees, or simply more minorities in college? I prefer the first, and Dr. Sowell's arguments skewer the current system when it comes to providing that.

Corey,

Maybe I could take you seriously if there were homeless, poverty, or alternate philosophy affirmative action. No, there is race based affirmative action. Universities are doing NOTHING to promote any other sort of diversity (except maybe gender, and that is largely unncesssary except in engineering/physics/math programs). If diversity is the real reason, why not discriminate to achieve religious, cultural, and political diversity? I suspect there are no efforts underway because the diversity proponents don't really believe in it.

I have a question for every one who believes in the diversity rationale: Are you willing to discriminate against Jewish professors to make room for other, under-represented groups? And if that is not OK, then why is OK to discriminate against whites and Asians generally? If one accepts the diversity rationale, there is really no limit to what can be done to promote the "diverse experience."

All other things equal, sure 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? 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).

Testing gap:

Under affirmative action, we would expect this gap to widen compared to a system of racial neutrality. Blacks, Hispanics and other recipients of affirmative action know that they do not have to acheive the same scores as whites and Asians, so there is less incentive to score well. Why spend hundreds of hours in preparation, or in attending to one's studies assiduously, when one knows they are treated under a more lax standard where they can more easily gain admission ot their school of choice? One would expect the recipients of affirmative action of all abilities to under acheive in standardized testing because of this lowered standard.

I apologise for the multiple posts...

For those who like evidence and reason:

Becker talked about research [from UCLA] that sugggests "preferenced" students cluster
at the bottom of the law school class:

Other research by Prof. Henderson at Indiana 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 to school has evolved to be duplicative of the measure of merit most often used for performance in school.

That explains why students preferenced into a school might duplicate the same performance gap while in the school. But legal practice does not resemble a timed law school essay exam. There is no reason to suspect the performance gap to extend beyond law school into legal practice absent discrimination there. Especially given the weak or nonexistant correlation between LSAT score and exams types that DO resemble legal practice.

"His research shows affirmative action places minority students in environments that are not suited to their academic skills"

But, as the research I mentioned above (as you were writing your post) indicates, the academic environments are duplicating the placement criteria, and neither are necessarily correlated to the skills necessary for success afterwards.
Perhaps academic environments could be made more "fair" by applying some diversity to the type of performance evaluations they do.

"Are you willing to discriminate against Jewish professors to make room for other, under-represented groups?"

Anyone who supports Aff. Action and thinks about it would note that it could "discriminate" against groups represented above their "natural" statistical population. That would include whites and Jewish professors.

If you are committed to the belief and evidence that race does not pre-determine merit in a non-discriminatory world, then you would expect the law of averages to work so that people were represented in proportion to the size of their group.

"If diversity is the real reason, why not discriminate to achieve religious, cultural, and political diversity?"

Yes, why not. I am for it. I agree that there are few efforts underway.

"All other things equal, sure 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?"

You've begged the question by saying "more qualified". There are inequalities in background (re wealth) that don't relate to merit yet do affect the test. The test doesn't take these into account so its determination that I am more qualified than the student who struggled to the top of a blighted school is suspect.

And again, if the test duplicates the grading system it admits for without correlating to alternate ways of grading, then the test does no work at all.

But yes, if diveristy is a positive good, then in the language of cost benefit so popular on this blog, it does justify some lesser degree of "harm".

"If you are committed to the belief and evidence that race does not pre-determine merit in a non-discriminatory world, then you would expect the law of averages to work so that people were represented in proportion to the size of their group."

Jews and Asians have succeeded in spite of their race, not because of it. They are over-represented in the professions and earn incomes that exceed the average for whites. Why is that? Culture plays a role here, not race (though race correlates with culture). I suggest you read some of Thomas Sowell's work on the topic.

Diversity is a weak rationale for affirmative action (that for historical reasons is now at the forefront). Yes, all else being relatively equal, let's take the guy from Montana and not Tennessee since we have three from Tennessee already. But diversity isn't meant to be the tail that wags the dog.

Affirmative action, when it produces the whopping favoritism that it does for African-Americans (I don't fear so much for most other groups, especially women, since they don't need much special help) will effectively keep them down longer than doing nothing. If you tell a group they don't have to perform as well as other to be rewarded, there is no reason for them to apply themselves as much. While the problems of blacks in America goes deeper than that, and certainly there is the issue of discrimination, it is nevertheless true that no two-tiered system where less is expected of group A than group B will lead group A to perform better in the long run.

This is just an idea that came to mind while reading the other comments, and it depends entirely on the assumption that SAT performance is a weak predictor of university success (note that universities admit based on a collective score, and do not take Verbal and Quantitative sections into account separately, thus a person who underperforms at math but gets a 1300 can get into the same engineering program that a person who underperforms at English and also gets a 1300.)

Assuming that the correlation between performance on the SAT and actual undergraduate performance is less than perfect, then there must be a cohort of African American students who desire admission to top schools, yet know they cannot 'make the grade.' As the expected chance of admission is 0, their performance will match the admission standards of the next best school.

However, if top schools lower the bar just a little, then these students will react to the rising statistical probability of admission by working harder and scoring better. Due to the inaccuracy of the SAT, these students could work just as hard as the rest of the student population. However, this argument could be applied to all underperforming students, not just African Americans.

Jon Stewart of 'The Daily Show' once made a joke that the white student who was denied admission to Princeton to make room for an African-American admission had to rely on his fallback: Stanford. Without realizing it, he brings up another interesting point:

Applying to the top schools in this country is not free. If you have two students with the same ability but separate incomes, the richer of the two will be more likely to be admitted into a top school because he is able to pay for more applications than the poorer of the two. Again, the largest problem with this argument is that it promotes affirmative action aimed at the poor, not at ethnic minorities.

Diversity is obviously a difficult concept, one that has to be about more than head counting with respect to race, creed, ideology, ancestry, etc. I have no grand theory on how to bring it about in the law school context or any other.

But the fact that "diversity" as a criterion is not easy to apply or is hotly contested does not make it unimportant. Nor can the concept be said to be discredited, although the difficulties in agreeing on how to use it put those who insist on using it on the defensive. This can rather be evidence that it is an important concept the fleshing out of which is a crucial if difficult conversation. In this case, the heat of the debate about diversity is shows that the important conversation is not being carried on successfully.

Neither, for that matter, does the fact that a criterion is relatively easy to apply (e.g. LSAT scores) make it appropriate. At most the former are inconvenient and the latter are convenient. I agree with those who say the LSAT should be more controversial than it is. But one must sympathize as well with the plight of admissions committees.

I'm ambivalent about affirmative action because it means so many different things, from quotas to the diligence in searching that Becker supports but does not seem to consider affirmative action.

One thing I am confident of is that to date it has been something of a BAND-AID. Some of Posner's discussion also suggests this BAND-AID view: That affirmative action usefully provides a sense of hope but does not really remedy past discrimination and the attendant reason(s) for lower levels of social advancement among blacks. I would agree and also think that a robust school voucher plan of the kind advocated at one time by Robert Reich would be way less of a BAND-AID (the fact that that term of derision was invented for vouchers notwithstanding).

'...no two-tiered system where less is expected of group A than group B will lead group A to perform better in the long run.'

Exactly. Which why AA is so pernicious, it teaches the wrong things to people who desperately need to know what Shakespeare knew 400 years ago; sweet are the uses of adversity.

Read Tom Sowell's autobiographical 'Black Education, Myths and Tragedies', to see why he says he thanks God that he grew up before AA.

While agreeing with the arguments against affirmative action as it is practiced in the U.S., i'd like to quickly point out that there are no affirmative actions in place in western europe, contrary to what Posner wrote. Only law enforcement tends to 'try to hire members of minorities as polive officers', but no specific numbers are attached to this policy. Continental European (not U.K.) policy focusses on lowering financial hurdles during education. For example, in Belgium the government strives to make education as cheap as possible (i.e. all wages are paid by the state ... lower grade and high schools are free to choose their religious orientation). Second example: the inscription fees in Belgium cost max. $500 per year at university (poor people can enter for free -- again there are christian as well as state universities). No entrance exams are required for any courses ... although some studies such as medicine where the supply has overshot demand temporarily organize entrance exams. The reasoning is that cheap, accessible education from the earliest age should make affirmative action at university entrance and during the subsequent career avoidable. Further underlying reasonings are that affirmative action at those later stages are too little, too late, and that lowering the hurdles to high quality education according to one's income is a more racially neutral policy.
The recent NYTimes articles on class in America suggested that social mobility in the United States is lower than in many western-european countries (incl. the UK, which us continental europeans still see as very much class-oriented), so we might be on to something.
The downside? Why, high taxes of course! 40% of the Belgian national budget goes to these educational subsidies. Although I have to say that our highest tax bracket is 55% (for incomes above 62,790 euro) -- http://www.taxup.be/nl/rates/tarieven/tar3.htm --
so our tax levels aren't as 'dramatic' as some Americans think. Especially since these taxes also include a National Health Service.

Meritocracy!! There is an extensive research literature on what it is and is not, and the great harm and little good it has done. READ IT!!

You complain about "affirmative action" as "us[ing] lower standards for African Americans and members of various other minority groups than for white males in determining whether they are promoted to higher level jobs in private business or government, admitted to better universities, and in other situations." I agree the standards are different. Whether they are "lower" is a very complicated social issue about who and how standards are defined. After all, the rich and powerful have always had "different" standards for all the things you mention. Do you really believe G.W. Bush was admitted and graduated from college because he "merited" it? I can tell you from personal experience the answer is no. But it is the same for many other "identified" groups -- children of alumni, at religiously based schools those very committed to the faith, and great sports stars. So "affirmative action" in the US is not new. Its just new for the so-called minority groups you choose to mention. And that brings up the issue of why you only mentioned "minority group" affirmative action rather the other pre-existing types I mention. Could it be you are biased??

And this whole notion of opposing "interest group politics" you bring up is totally disconnected from reality. The US is and has been always an interest group country. The only things that appear to have changed is that interest groups previously excluded from political power are beginning to find ways to gather it and those who hold the majority of political and economic power in the US are finding new and clever ways to legitimize their positions that are really, in your words, "bad for a country like the United States."

Why don't you turn some of your intellect and wit to protecting democracy in the US. Affirmative action is a small pimple, if that, compared to the current attack on US democracy (even as weak as that democracy has been historically).

I see two major problems with the diversity argument for affirmative action:



1. If diversity of viewpoints is the only justification for affirmative action college admissions, there is absolutely no reason for the proportion of minority students admitted under affirmative action to have any correlation with the proportion of minority students in the general population. If Eskimos make up 0.1% of the student population and that's sufficient to represent the Eskimo point of view, then why would we need African Americans to make up more than 0.1% of the population to represent the African American point of view?



2. A number of comments have already pointing out that the diversity argument, if we really believe it, suggests that we should seek to recruit students with a broad range of political and religious views. That's true, but a better argument would be that seeking a diverse student body requires us to recruit a lot more international students than we currently do. Does anyone honestly believe that the background of an African American contributes more to a school's cultural diversity than a student from another country?

"No man differs more from another than he does from himself at a different time."

I cannot remember the philosopher who said this, but I did not expect to see the difference in the same paragraph--to be precise, to say that meritocracy should be the rule and then also support (or at least try to justify)legacy selection to a university.

This reminds me of some recent observations of my wife, a reference librarian at a public library: that a good number of city employees were related--mothers, fathers, nephews and nieces--all in various departments (police, fire, library, city hall) throughout the city. A coicindence--I don't think so.

We need to vigilent against all forms of discrimination and unmerited preference. Unfortunately, this is not on the agenda. Nor are legacy candidates or recipients the ones to lead the charge.

I believe that as far as "diversity" goes, the Sup. Ct. did a good job in the Michigan cases, where the law school policy allowed for individual treatment (and was legal) while the undergrad poicy did not allow for individual treatment (and was thus illegal). Where a person is treated as an individual rather than as a member of a class, policies preferring traits that certain individuals have can be used. Among them: gpa, SAT, artistic ability, athletic ability, whether your parents are alumni, ethnic traits. Some of these are "merit-based" categories of characteristics that individuals my exhibit (depending on your views on nature vs. nurture!) and some are "inherent, immutable" characteristics.

Additionally, while recognizing the existence of data that suggests AA harms minority groups more than it helps, AA can also be viewed as a correction to a market failure. My contention to this point is as follows:
1) For every position (job, school, etc.) there are more qualified applicants than positions.
2) Where qualifications are equal, other measures are used to allocate the scarce position, including things such as how well you fit in the office environment and what sports team you like (non-merit based).
3) That all things equal, a person will hire someone for a scarce position who has more things in common with him, i.e. the person with whom there is the strongest in-group identification with.
4) Due to our particular history, and government sponsored institutions including, but not limited to, slavery and Jim Crow (anti-market forces acting to subsidize a particular class), certain groups have been under-represented in the hiring market.
5) Since certain groups have been under-represented (as a result of anti-market forces) in the hiring market, those same groups will be under-represented in the hired class. See (3).
6) Therefore, limited application of affirmitive action to QUALIFIED individuals (as many, if not most AA policies require) directed to correct this market inefficiency is justified (as a corrective matter).

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.

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.

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.

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?

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 ‘social construction of gender’ as proxies for caring about race and gender discrimination—thereby halting discussion of either AA’s failures or of other avenues of pursuing change.

But let’s 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 AA’s injustice.

Palooka writes: “All 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).”

The apparent contradiction—the 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 people’s 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: “A 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.”

That is, I don’t think the weight of this example comes from Becker’s 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 didn’t because someone less qualified got our place.

And doesn’t 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:
“[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.”

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?

Nate,

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?
http://www.cato.org/pubs/journal/cj14n3-9.html

'...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?

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.

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.

Corey,

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.

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?).The source of our opposition is our visceral sense of AA?s injustice.
harry

"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.

Limited

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/

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.

This is off-topic, but I am curious as to your thoughts on bankruptcy: recent U.S. legislation, history of bankruptcy, bankruptcy in other parts of the world vs. U.S., etc.

Nate, on the recent legislation, see:

http://www.becker-posner-blog.com/archives/2005/03/the_bankruptcy.html

http://www.becker-posner-blog.com/archives/2005/03/a_suggested_alt.html

Thank you for the URLs. I should have used the "search" box on the internet. Apologies for the question, and for being a little bit off-topic. Thank you Palooka.

I did a speed read on the URLs, and will spend more time in the future. Tentatively:
-it would have been nice to see concepts from world religion(s) incorporated into the discussion. This is partly why I probably brought it up at this time (follows last week blog on 10 commandments).

Here is some delayed input on bankruptcy:
http://tinyurl.com/9fdmf

the previous tiny url was wrong. this one should hopefully take you to some ideas from the same book as the 10 Commandments.

http://tinyurl.com/bycqo

"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"

Frankly, this is just racist. African-Americans are American citizens. They are not African.

"How is the next great nobel winning economist comparable to a diamond?"

Isn't that a higher standard than we set for the average white student? Most white people aren't nearly so intelligent or hard-working.

"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.

Often one has choices in life. For instance, to respond to the substance of a good argument, or to attempt -- pathetically -- to lampoon it. When one chooses the latter, he looks like a fool.

Jane,

If nobody has ever explained why racial discrimination is particularly harmful to society and the individual (the charge of the poster I was addressing), then it is perfectly rational to repeal the Civil Rights Act of 1964, and amend the Constitution to allow for governmental racial discrimination.

PALOOKA: It is perfectly rational to repeal the Civil Rights Act of 1964, and amend the Constitution to allow for governmental racial discrimination.

You are a racist.

Palooka, you said, "If nobody has ever explained why racial discrimination is particularly harmful to society and the individual (the charge of the poster I was addressing),...."

That is, categorically, a LIE. The poster noted that no one ever explains why racially discriminating in favor of rural whites is OK while simultaneously arguing that racially discriminating in favor of blacks is not OK.

Usually, those who oppose affirmative action ONLY oppose points awarded for race, but not points awarded for living in rural areas in sparsely populated states. Obviously, such points awarded on the basis of geography are quotas for rural whites.

It is hypocritical to support quotas for whites and oppose plus-points for blacks; and the source of the hypocrisy is either irrational(e.g., stupidity) or rational (e.g., racism).

Corey:

Do you ever listen to a band called Diamond Rio?

http://www.diamondrio.com/music/complete/index.html

I found the lyrics to Beautiful Mess to be interesting (you can click on the words "Beautiful Mess" at the site above and read the words).

Is it a coincidence that songs like this get popular when labor force participation rates descend?

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

The Nazis garnered much medical information by torturing Jews, whom 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 subsidize racism and sexism after the fact, John?

First, I'm not in favor of legacy admission or "quotas" for rural individuals.

Jane, you know I am not in favor of appealing the Civil Rights Act of 1964 or amending the Constitution to allow for discrimination. That was precisely my point in addressing the person who was asking why racial discrimination was special--that uniqueness is manifest in our nation's recent history, while discrimination based on geography is, curiously, not. I am not sure what you think you're adding to discussion by deliberately misreading my post and calling me a racist.

Waiting for Google wrote: "That is, categorically, a LIE. The poster noted that no one ever explains why racially discriminating in favor of rural whites is OK while simultaneously arguing that racially discriminating in favor of blacks is not OK."

Well, I could call your error here a lie, but I won't. The poster wrote: "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."

Discrimination based on geography--however arbitrary and capricious it may or may not be--is not the same as racial discrimination. Your post (and I'll assume it was not deliberate) tries to conflate the two by saying "rural whites." Yes, I would believe a system which gave preference to rural whites, while excluding rural blacks, to be unconstitutional, just as I believe race-based affirmative action is unconstitutional.

My own preference is that affirmative action, if it exists at all, should be a socio-economic one, open to all students of disadvantaged backgounds.

Becker's argument assumes that there is an objective standard for past achievement irrespective of past privilege. Surely, standardized tests such as SATs, do not meet that criterion given that advantaged schools explicitly train their students to do well on tests (lots of evidence for that). Is the top X% of high school admittance strategy not a reasonable response to the failure of this measurement instrument?

No standards, ultimately, can be 'irrespective of past privilege' in the way you desire. Perhaps the top X% of the classes in some poor schools did well because their parents were better at disciplining them to be conscientious students. It's not the fault of the lower percent-tiles that their parents were neglectful -- perhaps they should receive AA treatment too.

Although it is true that privileged students have an advantage by being able to afford 'SAT courses' from the Princeton Review or Kaplan, I think that anybody who wants to shell out ludicrous amounts of money and lots of his time to learn bits of common sense such that if one eliminates one or two answer choices he has a better chance of getting the question right, he should be welcome to. This may 'unfairly' raise his score one or two hundred points, but his lack of natural intelligence will show in other parts of his application and likely prevent him from getting into that Ivy his parents so wish him to attend.

I know it's unlikely anyone is still reading comments to this; but if they are, let me ask proponents of "diversity" and AA to respond to the following argument. Students who attend historically black colleges (e.g. Howard U., Spellman) receive educations in a non-diverse environment. Therefore, their educations are inferior to similar individuals who attend a more diverse college. Therefore, an employer is justified in "discriminating" against Spellman (etc.) grads.

More broadly, are you willing to say HBCs provide inferior educations because they are non-diverse?

HBC's are non-diverse on one axis (race) but could be very diverse in terms of class, politics, and culture.

There is evidence that SOME students do better in HBCs or single-sex institutions. Many people approve of them consistent with a belief in permitting diversity of educational approaches.
(See the Supreme Court VMI opinions.)

I find the concept a bit troubling because at some point, the voluntary segregation by race or gender must end and students must deal in the larger universe. Also, my best educational experience was at a very racially diverse school so I am biased to prefer that. But I would NOT say that HBCs provide inferior educations.

Imagine you are a top student at Howard or Spellman looking for a job. Your competition are top students from Harvard and Stanford. Many employers are going to search for a shortcut to evaluating you relative to them and fall back on the US News college rankings, which are based largely on standardized test scores at admission.

So the test gap rears its ugly head again. Employers will discriminate against even top Spellman grads on those grounds. I do not think they should, or that it is rational to do so. I would say a top Howard student shows as much potential as a top Harvard student.

However, there are companies and law firms out there that act as if the average students at Harvard are more qualified that the Top student at lower ranked schools. They might not take ANY Howard grads were there no diversity or AA pressure. Ask yourself if it makes sense to compare across such diverse institutions using a standardized metric. Or if it makes sense to judge graduates of universities using a ranking that is based most prominately on admissions criteria.

Corey, are you really prepared to say anything? Earlier you said that AA admits were just as qualified as their peers, but then sought to explain the benefits of diversity in terms unfavorable to their qualifications (the "top students" could help them). Now you continue to tout the virtue of diversity, but also concede HBC's are not inferior, and in fact may actually be superior because of their lack of diversity. You're all over the map. I can only interpret this incoherence as the result of an ad hoc defense of what you intuitively favor. You're entitled to your beliefs, whatever their basis. But I do think it's compelling evidence that you haven't thought the diversity rationale through.

I can live with the original rationale of affirmative action. That it was (maybe is) necessary to right the wrongs of the past and fully embrace a community which (as Posner suggests) remains largely impoverished and distinct. I do not think raced-based affirmative action does much to further this noble goal, however. But I can sympathesize with the goal per se. Diversity is a different story. Diversity portends racial discrimination without an expiration date and without limit. Diversity reinforces rather than weakens the core belief of racism--that one's identity is determined by one's race.

HOWARD: "More broadly, are you willing to say HBCs provide inferior educations because they are non-diverse?"

No, I will say that HBCUs provide inferior educations because the schools suck. They suck because the funding isn't there, the professors don't publish and are spouting ideas circa 1970, the curricula are outdated and too remedial (because HBCUs take too many students with abysmally low standardized test scores, and those students know practically nothing), the campuses are too religious (so that learning anything in a philosophy class is an impossibility), and the socio-racial norms there are oppressive, stultifying, and blatantly anti-intellectual, not to mention usually anti-Semitic and, frankly, rooted in Marxism. I would also mention that Howard in particular is rife with corruption and its administration is hilariously poor (try finding a book in the library more recent than 1978), and its campus is open to violence (e.g., street people take potshots at Drew Hall, drug dealers from the surrounding community can drive through the campus to commit drive-bys). Not to mention the women are mostly grossly overweight; unless you're a chubby-chaser, it's not the best place to get laid, pal.

I went to Howard. I know it was crap. Was it crap because it was virtually all-black? No. But it was crap nonetheless.

Discrimination based on geography--however arbitrary and capricious it may or may not be--is not the same as racial discrimination. Your post (and I'll assume it was not deliberate) tries to conflate the two by saying "rural whites."

I didn't conflate anything. I performed the relevant analysis under the Equal Protection clause, which is to ignore pre-texts and go to the intent and impact of the invidious discrimination. You may call it "geographic discrimination" but what it IS and what it is INTENDED to be is an aid to rural whites. It is a quota for rural whites. You pretend it is not, Palooka, because you think quotas for blacks are bad, but quotas for whites are good. Given that you called for repealing the Civil Rights Act of 1964 (and, by implication, the Civil Rights Act of 1866 and the 13th, 14th, and 15th Amendments), one might say that you're a dirty racist just like John Kelsey and R.

Just to make clear that I was calling PALOOKA racist....

PALOOKA: Discrimination based on geography--however arbitrary and capricious it may or may not be--is not the same as racial discrimination. Your post (and I'll assume it was not deliberate) tries to conflate the two by saying "rural whites."

I didn't conflate anything. I performed the relevant analysis under the Equal Protection clause, which is to ignore pre-texts and go to the intent and impact of the invidious discrimination. You may call it "geographic discrimination" but what it IS and what it is INTENDED to be is an aid to rural whites. It is a quota for rural whites. You pretend it is not, Palooka, because you think quotas for blacks are bad, but quotas for whites are good. Given that you called for repealing the Civil Rights Act of 1964 (and, by implication, the Civil Rights Act of 1866 and the 13th, 14th, and 15th Amendments), one might say that you're a dirty racist just like John Kelsey and R.

PALOOKA: "I can live with the original rationale of affirmative action."

Live with? I suppose you tolerate the 13th Amendment, too, eh? You can live with Condoleeza Rice as Secretary of State, too, I bet.

"You may call it "geographic discrimination" but what it IS and what it is INTENDED to be is an aid to rural whites. It is a quota for rural whites. You pretend it is not, Palooka, because you think quotas for blacks are bad, but quotas for whites are good."

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. Do you honestly believe such a practice is designed to help rural whites rather than rural individuals whatever their race? I don't think giving someone points based on geography makes much sense. Though geography may coorelate with socio-economic status, it is better to link affirmative action directly to it if that's the aim. That is what I'd recommend.

Jane, are you suggesting opposing affirmative action is the same as opposing the 13th Amendment? I see how fruitful this debate has become. I see no reason in debating individuals whose idea of debate is screaming racist.

This blog is fundamentally concerned with an examination of the world through the lenses of law and economics using reason and evidence. The objective of this blog, I believe, is to share ideas and to learn.

Corey is openly hostile to such reason and evidence, what he calls "formal analysis". He appears to believe his ends justify any means. An example is his selective quoting of statistics, and his hostility to this being pointed out, two weeks ago. Corey appears to believe there is no objective truth, that people are entitled to their own facts, and that any interpretation of data is possible. He appears incapable of producing a line of reasoning. See, for example, his 12:08am post on Aug 20 at www.becker-posner-blog.com/archives/2005/08/the_ten_command.html

Obfuscation is Corey's main weapon. He produces it in many ways. His preference for diversity in assessment this week is an example. Standardized tests ease comparison, diverse tests permit any conclusion to be drawn. He regularly shifts his argument when his points are rebutted. He regularly misinterprets his opponents' points and rebuts arguments nobody made. He attacks people not arguments.

I believe Corey's postings are contrary to this blog's objectives. In fact I consider he subverts those objectives by presenting his beliefs as if they were supported by reason and evidence when, after long conversations in some cases, it is eventually revealed they are not.

I therefore conclude this blog would be substantially improved if Corey were to not post to it.

And I look forward to a rebuttal that includes examples of all my complaints above.

"Now you continue to tout the virtue of diversity, but also concede HBC's are not inferior, and in fact may actually be superior because of their lack of diversity."

I refered to evidence that SOME students do better in single race/gender environments. My prominant use of the word SOME incorporates by reference the conclusion that others do not.

Valuing diversity forces one to conceed that ther are multiple paths, HBCs might be good, or as the person above claims, they might be horrible. They might be both at the same time for different people. Please resist the temptation to attack my entire well supported argument because I conceeded a subtlety.

"ben" said:

"I therefore conclude this blog would be substantially improved if Corey were to not post to it."

Do I know you? Do we attend school together? Do you believe that you have a larger dispute with me personally? If you are going to shift aliases, you should try not to use language like "I therefore conclude" so often, someone might see through it.

What a small-minded response.

Thanks for validating at least a couple of my criticisms (how about more?)

It is apparently difficult for you to understand criticism directed at your arguments. So, to be clear, no I do not know you. I am responding to your postings.

And I was hoping the other person to use that phrase was Posner or Becker. But google tells me it wasn't. I am not that other person. Try again.

Coincidence then. I decline your challenge.

http://www.nytimes.com/2005/08/28/books/review/28KOTZL.html

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.

I didn't call you a racist because that is my preferred form of debate, Palooka, I called you a racist because you called for repealing the Civil Rights Act of 1964.

"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.

I didn't call you a racist because that is my preferred form of debate, Palooka, I called you a racist because you called for repealing the Civil Rights Act of 1964."

My understanding is that people associate rural with poor. I doubt those rural invididuals who receive any sort of boost in admission are from privileged backgrounds. Under the diversity rationale, maybe some admissions committees believe having a rich farm kid adds to the environment. Regardless, rural kids receive little or no preference, so the discussion is more of a hypothetical.

I would have much less problem with an affirmative action problem which sought to give a boost to urban areas or any school which lacks resources and typically has trouble sending kids to college. Still, I see this as inefficient and prone to abuse and gaming. I would prefer first generation and poor kids receive a preference or financial subsidy, irregardless of their race.

I did NOT call for repealing the Civil Rights Act of 1964. If this was not abundantly clear, it should be now. In responding to the question posed by a commenter on the differences between geographic versus racial discrimination, I pointed (perhaps flippantly and ineffectively) to the constitutional juriprudence and the Civil Rights Act of 1964 as proof that our society views them as manifestly different.

I read about 40 posts...
What an interesting subject...

What got my attention. And, I guess it makes me feel kind of old...is I didn't see portrayed the situation in the US in the '60s. Bottom line, rampant discrimination. Blacks, had separate hotels, restrooms, back doors, you name it!

And, It didn't stop there. To many white people, blacks were niggers. Meaning, blacks were inferior, dirty, uneducated, not fit to accompany whites... A sad situation to say the least.

The point I'm trying to make is that we humans tend to caricaturize our enemies, in order, to numb ourselves when we destroy them --they are worth nothing, so nothing is lost...

Japs suffered this through the war.

I know Arabs or Muslims are suffering this now.

To sum it up, whites and blacks were forced to --integrate, was the word--, basically, to be so close as to rub their noses, which, should've tore down their ill misconceptions. As I read all of your touching posts, I can safely say, the mission was accomplished. True, it�s still not a perfect world. But, I�m happy to say, it yells at the good things we can all accomplish!

So, I admit, there are costs, but please, the alternative costs were bringing the US to a social meltdown.

Having lived the lesson, I encourage you all to look at ways to integrate the Muslim culture, the Chinese, too� I visualize we will shortly need it. If not, the costs maybe staggering, 9/11 was nothing.

Congratulations on your magnificent posts!

I�ll read the rest now. Got it off my chest.