Thursday, August 21, 2008

Silver Lining

There are two positive facets of a possible Obama presidency. First, the bets I'll win from over-optimistic Republicans and perpetually-pessimistic Democrats. Second, and more serious, the post-inauguration posts I plan announcing the end of racial preferences.

Background: Contrary to conservative views, my reading of the Constitution and admirable mid-1990s jurisprudence, see Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), the Supreme Court upheld "affirmative action" racial classifications in Grutter v. Bollinger, 539 U.S. 306 (2003). In approving race-weighted admissions at a state-run law school (Michigan), Justice O'Connor provided the crucial fifth vote and wrote the majority opinion, which (at the end of part III.B) portrayed the remedy as limited:
The requirement that all race-conscious admissions programs have a termination point "assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." Richmond v. J. A. Croson Co., 488 U. S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May-June 1977) ("It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all").

We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317-318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Never mind that setting sunset-dates for social policy is a job for the legislature, as Law prof Michael Dorf noted:
Legislatures occasionally include sunset provisions in the statutes they enact, but it is highly unusual for a court to do so. Moreover, the period of twenty-five years is completely arbitrary.
Never mind that Michigan voters so disliked the result that they overwhelmingly overturned it within the state a few years later. Rather, my focus today is on the requirement that preferences expire when their asserted goal is achieved, i.e., when racial discrimination no longer is necessary to ensure that the particular government qualifications or benefits--be they school admissions, government contracting, or electoral district line-drawing--are equally taken advantage of by all. Never mind about differential submission numbers and similar non-race-based individual choices--often assumed to be evidence of bias.

Relation to Obama's position: Though Obama emits equivocal soundbites on racial preferences--observing that his daughters' college admission applications in the future "should probably be treated by any admissions officer as folks who are pretty advantaged"--he also consistently has supported collegiate affirmative action. Though he claims to favor affirmative action evolving away from race-based toward class-based criteria, Obama actively opposes state ballot measures, such as adopted in Michigan, that abolish racial preferences. I note that the wisdom of substituting class for race is amply illustrated in William Bowen and Derek Bok's pro-affirmative action book, The Shape of the River, as Reid Alan Cox observed:
In fact, these former presidents of Princeton University and Harvard University, respectively, found in their study that an overwhelming 86 percent of blacks at selective institutions hailed from middle or upper-middle class families. In other words, the beneficiaries of race-based affirmative action are not the children from inner-city Los Angeles, but instead are most likely to be the sons and daughters from suburban Santa Monica.
Does that mean Obama would end racial preferences? I'm skeptical, in part because Democrats are so steeped in them, as shown by the draft 2008 party platform (page 47):
We support affirmative action, including in federal contracting and higher education, to make sure that those locked out of the doors of opportunity will be able to walk through those doors in the future. If we are to live up to our founding promise of equality for all, we must make sure that opportunity is open to all Americans.
I don't profess to know what Obama would implement as President. Meaning Obama's policies alone might not alter affirmative action.

Relation to Obama himself: Obama has long been seen as the first "transracial" candidate. Neither Democrat primary results nor the Senator's race-obsessed 1995 autobiography (Obama, watching the 1969 moon landing: "How could America send men into space and still keep its black citizens in bondage?") support that, but never mind. The syllogism seems simple: If Barack can be elected President, does significant anti-black racial discrimination still exist in America? Wouldn't inaugurating Obama mean, as a Puffington Host blogger put it, that "anything is possible"? Did O'Connor's quarter century arrive 20 years early?

National Review's John Miller lists some effects of elevating Obama (from the September 1st issue; subscription-only):
The election of Barack Obama threatens to become the worst thing that ever happened to race-based affirmative action. So says liberal columnist Bonnie Erbe. “What could do more damage to the argument that African Americans deserve racial preferences than a majority of Americans voting to put an African American in the White House?” she asked in July. Her answer: “Little, from where I sit.”

The case for racial preferences almost certainly would weaken during an Obama presidency. Sanctimonious liberals everywhere would face a squirm-inducing question: “If racism in America is so bad, then how come . . . ?” The smart ones will observe that most whites actually cast their votes for John McCain (as seems likely, based on current polls). Even so, Obama’s success would force the conversation about racial preferences to shift fundamentally.

To a certain extent, it already has. On the night of January 26, after Obama won South Carolina’s Democratic primary, supporters at a victory party broke into a chant: “Race doesn’t matter! Race doesn’t matter!” The mood was so jubilant that even a veteran race hustler like Rev. Jeremiah Wright would have been tempted to join in.
If that's so, wouldn't the election itself undermine the continued basis for so-called "reverse discrimination"? Not so fast, says Miller:
[T]he case for racial preferences and their ongoing reality are separate things. Obama may inspire all kinds of happy talk about national healing. (If you think the media are already treating him as a post-racial messiah, just wait until his inauguration day.) At the same time, his administration would strive to make sure that racial bean-counting shaped voting districts, college admissions, K–12 demographics, public contracting, and business hiring. . .

As a presidential candidate, Obama has tried to sound more conciliatory. When the topic of racial preferences comes up, he says he’s against quotas — politicians always say they’re against quotas — and suggests considering class-based preferences. “We have to think about affirmative action and craft it in such a way where some of our children who are advantaged aren’t getting more favorable treatment than a poor white kid who has struggled more,” he said in July. But make no mistake: Obama would not supplant racial preferences with socioeconomic ones. Instead, he might supplement them, further chipping away at the notion that merit ought to outweigh all else when awarding anything from public-university slots to federal highway contracts.
This is because, whatever Obama's aspirations, his supporters will want him to govern as a typical left-liberal Democrat--and preserve preferences.

Conclusion: Ironically, although Obama at the top is the best evidence for ending affirmative action, I doubt we're approaching "The End of (Race-conscious) History." That won't stop me from posting pleas to halt antiquated preferences.

Twenty-five more years always was both unsupported and over-generous. I'd prefer a future conservative court overruling Grutter--after all, Alito now holds O'Connor's SCOTUS seat. But a five year race discrimination sell-by date also would be a win--and a bright spot among the gloom.

Were Obama elected President, anything is possible--even ending affirmative action. Not that I'd bet on it.

5 comments:

bobn said...

Though Obama emits equivocal soundbites on racial preferences...he also consistently has supported collegiate affirmative action. Though he claims to favor affirmative action evolving away from race-based toward class-based criteria, Obama actively opposes state ballot measures, such as adopted in Michigan, that abolish racial preferences.

This is the "Obama Uncertainy Principle".

While we might fret that McCain's positions change over a period of years, we find that we can't figure out what Obama's position is, even at a single instant in time. This is particularly vexing for me in Obama's "position" on Gun Control.

(The concept of the Uncertaintly Principal derives from quantum mechanics, and is related to the difficulty of accurately observing the motion and position of subatomic particels without affecting those values. It does not apply to objects 6'4" and 200lbs. However, Obama's positions are much less substantial, so many have taken to borrowing from quantum mechanics to describe them.)

OBloodyHell said...

> The concept of the Uncertaintly Principal derives from quantum mechanics, and is related to the difficulty of accurately observing the motion and position of subatomic particels without affecting those values. It does not apply to objects 6'4" and 200lbs. However, Obama's positions are much less substantial, so many have taken to borrowing from quantum mechanics to describe them.)

1) "Uncertainty Principle"
2) Actually, it does apply to things 6'4" and 200#. Its overall probability of having a notable effect is inordinately small. There are mysterious cases of a person walking around a corner and disappearing (Ambrose Bierce being the most notable one, who apparently walked around behind a car and was never seen again). More than likely there's a more mundane explanation, but quantum mechanics certainly does not rule out the possibility of spontaneous teleportation.

More recently, QM is the thing that brought Stephen Hawking to his first real notice. Black Holes are directly predicted as a follow-through of General Relativity, which predated QM (ca. 1910 vs. 1925). One of the first things Hawkings did, back in the mid 1970s, was to reconcile the two together, first to show that black holes aren't really black (there's a thing called an event horizon which is the boundary between "inside" and "outside" the black hole). A particle (which doesn't have, by QM, a truly "fixed point", but in fact resides inside a "probability cloud", until you decide to observe it and actually fix its location) might straddle the event horizon via that "probability cloud"... and thus it can be "trapped" inside the black hole, unable to leave by "normal means" then suddenly decide to be somewhere else... like on the other side of the event horizon, freeing it to travel about the universe.

The significance of this to physics was nothing less than remarkable, esp. in light of another of Hawking's earliest works, in which he showed that, during the first few nanoseconds of the universe, conditions existed which could have created black holes of a greatly sub-solar mass. His reconcilement of GR with QM, however, demonstrated that, under a certain size (somewhat greater than the mass of the Earth, IIRC), such holes would, in effect, "evaporate", and so would no longer exist (beyond a certain mass the evaporation was slow enough that they could still exist). The cube-square law has an application here explaining why.

OT, but still somewhat interesting, I think. If you'd be interested in more check out the 1970s collection of science essays by Jerry Pournelle, called "A Step Farther Out". In some areas, mildly dated by now, out of print, but very, very readable. You can probably get it through Amazon used books.

bobn said...

I note that the wisdom of substituting class for race is amply illustrated

So, Carl, do you accept class-based preferences as a method of dealing with inequalities of opportunity?

bobn said...

Actually, it does apply to things 6'4" and 200#. Its overall probability of having a notable effect is inordinately small. There are mysterious cases of a person walking around a corner and disappearing (Ambrose Bierce being the most notable one, who apparently walked around behind a car and was never seen again).

I don't think the Heisenberg Uncertainty principle deals with that kind of phenomenon - it is a measurement issue. And, per Wikipedia, Bierce disappeared in Mexico, in a war zone - after sending mail that indicated he wasn't all that interested in living anymore. We don't need QM to explain that one. This site covers the Bierce theories in more detail.

Oh, and you might want to check out my blog - some new entries there.

Carl said...

bobn:

I'm not sure I agree that there are inequalities of opportunity, see self-identified-black-man-with-good-chance-to -be-President, above. But if we must add a "jump-start," aid to the economically needy--also known as student-loans and scholarships--is the way to go.

And I think you're right that Heisenberg "indeterminacy" (closer to the meaning in the original German) applies only to QM events--though I took OBH's reference to Bierce as an amusing quip.