Friday, July 17

The Myth of Reverse Racism in Affirmative Action

This week Pat Buchanan wrote an Op-ed and made an appearance on Rachel Maddow where he argued vehemently that White People need to Rise UP against the "Evil of Affirmative Action and Reverse Discrimination."

Contrary to many progressives I don't think Maddow won this fight because nearly everything Pat said was flat-out wrong and she let it go by without correcting him.

First of all there's the claim, or view, that Sotomayor's Scholarship to Princeton wasn't deserved, when the fact is she graduated from a prestigious private Catholic High School Cardinal Spellman, as Valedictorian.

That means she was TOP OF HER CLASS PAT!

But that still doesn't mean that her grades or test scores were the best in the country largely because of different schools have different courses available - and AP (or College-Level) class get the student Bonus points.

For example many students applying to School such as UCLA come in with an Average GPA for 4.1 or 4.2. How do you get better than 4.0 Grades? Bonus Points for AP classes, classes which are rarely available in Inner City Schools.

Pat was largely riffing of of this report.

"I am a product of affirmative action," she said. "I am the perfect affirmative action baby. I am Puerto Rican, born and raised in the south Bronx. My test scores were not comparable to my colleagues at Princeton and Yale. Not so far off so that I wasn't able to succeed at those institutions."

She said that using "traditional numbers" from test scores, "it would have been highly questionable if I would have been accepted."

In addition to this issue there was also a language barrier for Sotomayor at Princeton which she struggled with and ultimately overcame rising again to the Top of her Class.

Nobody Gave That to her, she earned it.

What she meant by "Perfect Affirmative Action" baby is that she got a chance and having that chance she made the best of it as many studies have shown many people admitted to prestigious schools under Affirmative Action usually do excell.

A major new study of the records and experiences of tens of thousands of students over 20 years at the some of the nation's top colleges and universities concludes that their affirmative action policies created the backbone of the black middle class and taught white classmates the value of integration.

The Bowen-Bok study limits itself to the practice of race-conscious admissions in elite higher education; that is, to considering the race of applicants to be a critical factor in whether they should be admitted, as important as, say, their region of origin or their extracurricular activities.

The study begins by documenting the problem clearly: blacks who enter elite institutions do so with lower test scores and grades than those of whites. And as they work their way through liberal arts colleges like Yale and Princeton and state schools like the Universities of Michigan and North Carolina, black students receive lower grades and graduate at a lower rate.

But after graduation, the survey found, these students achieve notable successes. They earn advanced degrees at rates identical to those of their white classmates. They are even slightly more likely than whites from the same institutions to obtain professional degrees in law, business and medicine. And they become more active than their white classmates in civic and community activities.

Often coming from weaker and deficient High Schools, it makes sense that some students, even those who are at the relative top of their class - like Sotomayor - may not hit the ground running as some of their better prepared collegues, but in time they are capable of Catching Up and in many cases - Passing Them while providing an even greater impact on their community and the world at large.

From Top of Her Class in High School to Top of Her class at Princeton Sotomayor like the Bowen/Bok Study shows was a "Typical Affirmative Action Baby" went on to Top of her Class at Yale and the Yale Law Review, followed by years as a prosecutor, corporate lawyer, the Federal Bench and 17 Years on the Appellate Bench.

She has more Federal Bench Experience than any Supreme Court Nominee in 100 Years and still she isn't GOOD ENOUGH for Pat because simply put - she simply follows the law and doesn't SHOW OFF in her rulings? She hasn't written a flashy Law Review article? Yeah, so?

My problem with Pat's argument is that we shouldn't be comparing her to Harriet Miers who never even had a hearing but to those that DiD. I didn't see any of these requirements come up with either Justice Roberts or Alito. How many scholarly Law Reviews did they write? How much Bench Experience, particularly Roberts - who became Chief Justice Of the Supreme Court after being appointed to the Appellate Bench in 2003 with ZERO, NONE, ZIP experience as a Federal Trial Judge?

Three years experience. THREE!

If Roberts can be Chief Justice after graduating Magna Cum Laude from Harvard and 3 years on the bench - then Sotomayor can certainly be an Associate Justice with Suma Cum Laude's from Yale & Princeton plus 17 Years of Federal Bench experience.

And as far as being "Biased Against White Men", Sotomayor has far from a record of favoring minorities on discrmination cases. Via Scotusblog.

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions.

Let's do the math, 78/96 means she decided against minority plaintiffs in 81% of her cases on the appeals court. Frankly, I find that flat-out stunning - and as a progressive somewhat worrying.

The other thing is this entire "White Victim" mentality that Buchanan likes to pimp. He refers to the Bakke Case repeatedly which went to the Supreme Court in 1977 - and the court in that decision Banned Quota Systems that would do exactly what Pat is bitching about, unfairly take oppurtunities away from the majority by giving lessor qualified minorities their slot.

Twice denied admission to a California medical school despite better grades and test scores than successful minority applicants, Allan Bakke took his grievance to court and set off a major controversy over affirmative action. Bakke claimed that he was a victim of reverse discrimination, and his case has been considered by many as the most important civil rights decision since the end of segregation-and also one of the most difficult ever heard by the Supreme Court.

While four justices confirmed that Bakke had been the victim of reverse discrimination, four others agreed that the school's affirmative action plan was a logical application of the 1964 Civil Rights Act. Justice Lewis Powell sided with both viewpoints, resulting in Bakke's admission to the school and the upholding of affirmative action. The Court's unusual split decision invalidated UC-Davis's quota program for minorities but also struck down a California court's ruling that race could not be used as a factor in considering applicants.

Since this decision Affirmative Action Programs had to be limited and targeted specifically to avoid creating the type of "Reverse Discrimination" impact that is apparently still lighting Buchanan's Hair on Fire - 31 years Later.

It's also worth noting that the President who was largely responsible for implementing Affirmative Action in the first place - was the one that Buchanan worked for - Richard Milhouse Nixon.

1970. The Labor Department, under President Richard M. Nixon, issued Order No.4, authorizing flexible goals and timetables to correct "underutilization" of minorities by federal contractors.

1971. Order No.4 was revised to include women.

1971. President Nixon issued E.O. 11625, directing federal agencies to develop comprehensive plans and specific program goals for a national Minority Business Enterprise (MBE) contracting program.

1973. The Nixon administration issued "Memorandum-Permissible Goals and Timetables in State and Local Government Employment Practices," distinguishing between proper goals and timetables and impermissible quotas.

Another point is that under all the Exec Orders issued by Kennedy, Johnson and Nixon Affirmative Action is not something that every company is required to do. Only Federal Agencies or their Contractors. Which bring us to the Ricci case which simply put had nothing to do with Affirmative Action at all - this was a Civil Rights Case under the rules of Disparate Impact.

Under Title VII of the CIVIL RIGHTS ACT OF 1964, plaintiffs may sue employers who discriminate on the basis of race, color, gender, religion, or national origin. Employers who intentionally discriminate are obvious candidates for a lawsuit, but the courts also allow plaintiffs to prove liability if the employer has treated classes of people differently using apparently neutral employment policies. The disparate impact theory of liability will succeed if the plaintiff can prove that these employment policies had the effect of excluding persons who are members of Title VII's protected classes. Once disparate impact is established, the employer must justify the continued use of the procedure or procedures causing the adverse impact as a "business necessity."

Proof of discriminatory motive is not required, because in these types of cases Congress is concerned with the consequences of employment practices, not simply the motivation. If the employer proves that the requirement being challenged is job related, the plaintiff must then show that other selection devices without a similar discriminatory effect would also serve the employer's legitimate interest in efficient workmanship.

Frank Ricci was not Discriminated Against because the City of New Haven decided to double check their test to ensure they weren't vulnerable to a Disparate Impact suit. They were simply doing Due Diligence under the Law to make certain the test met the above criteria. If any of the potential Black Firefighters had sued, they would have had to prove that another alternative test which met the legitimate business needs of the Fire Dept could be crafted that didn't have this kind of clearly biased outcome which is a fairly high hurdle to climb.

How do you know that the results would be different with a different test unless you went through the expensive process of remaking the test and having it retaken by all applicants?

As a result no such suit was filed, and probably wouldn't have been filed.

What held up the promotions of Ricci and the other Firefighters for five years was their own Suit.

In response the Supreme Court has now added yet another hurdle for potential victims of Covert discrimination - they must now have a clear likelihood of prevailing in their action, prior to any case being filed.

As it stands right now under the law the only way that a White/Majority Person might lose a hard-one position to a minority or woman is when Discrimination has been Clearly and Demonstrably Proven in a Court and a Consent Decree has been put into place to Remedy an Ongoing and Current Crime. It's the equivalent of catching a crook (in the Majority) and giving his ill-gotten gains (Jobs/Promotions/Loans/Housing) back to the people that it was stolen from in the minority.

Most people would call that "Justice".

And in all likelihood, when something like this occurs as it has with the Pittsburgh Police, the Stuebenville Police, and the Los Angeles Police in the wake of the Rampart Scandal - we're not likely to hear "Uncle Pat" Railing about how unfair all of it has been to the various victims of this mistreatment.

At least now the Civil Rights Division of the DOJ (the group responsible for negotiating and enforcing these Consent Decrees) won't have people like Brad Schlozman driving minorities and women out of the Department in Droves to be replaced by "Good Americans" who don't seem interested in enforcing the Voting Rights Act. It's not encouraging when the people responsible for protecting the American people from discrimination - Can't Protect Themselves From it.

"Bradley J. Schlozman is systematically attempting to purge all Civil Rights appellate attorneys hired under Democratic administrations," the lawyer wrote, saying that he appeared to be "targeting minority women lawyers" in the section and was replacing them with "white, invariably Christian men." The lawyer also alleged that "Schlozman told one recently hired attorney that it was his intention to drive these attorneys out of the Appellate Section so that he could replace them with 'good Americans.'"

Haven't heard much from Buchanan - the great "anti-discrimination" Crusader - on this one have we?

The Reality is very different from what Buchanan paints, and the danger here is that to many aggrieved whites he makes sense. On the surface, if you've lost your job or don't think you've gotten the promotion you Must have deserved and some woman or minority got it - it's so easy to assume it must be Because of Affirmative Action even though you're employer isn't likely to even have such a program in place unless as I said, they are a federal agency or federal contractor.

Chances are - you didn't deserve the gig. Either that or you boss is kind of a dickhead, in which case it's certainly not the fault of the minorities around you or Affirmative Action.



Anonymous said...

Well said. While its tempting to comment on his offensive comments, its unfortunate that he is being given this platform by the media to spew his racist comments and gaining all this publicity and no one is standing up to challange him.

Anonymous said...

Sans the choice word(s), this piece is highly informative and it was well said! The people perish for lack of knowledge. Vyan, provided the knowledge and dared to challenge the skewed thought processes and ilicit rhetoric which only serves to incite and enrage the more less informed.
Thanks for standing up and educating us all!!!!