Nick Gillespie | November 7, 2008
On Tuesday, Nebraska voters passed a ballot initiative barring the use of race- or gender-based affirmative action in recruiting students, faculty, and employees at state insititutions, including schools and universities. From an AP account:
The Nebraska constitutional amendment prohibits public agencies from giving preferential treatment on the basis of race, sex or ethnicity when hiring and performing such tasks as awarding contracts and granting scholarships.
The ban passed with almost 58 percent of the vote. A similar measure was on the ballot in Colorado, but the vote remained too close to call Thursday.
The League of Nebraska Municipalities is reviewing how the amendment might affect hundreds of local governments across the state, Executive Director Lynn Rex said. Some federal grants, such as those for affordable housing, are tied to affirmative action, she said....
"Affirmative action is something often done on the front end of the hiring process to make sure you have a job description that doesn't limit candidates, and that you have a recruitment process," [Southeast Community College President Jose J.] Soto said. "Ninety percent of affirmative action has nothing to do with ... using race or gender to make a hiring decision. It's to provide open access to opportunities."
The proposition is being challenged in court, on the grounds that the signatures collected to put in on the ballot were fraudulent. The prop was spearheaded by Ward Connerly, the University of California regent behind the successful attempt to stop race-based set-asides in California's public sector more than a decade ago. How will affirmative action and other forms of preference, which have (I think) declined as a hot-button issue over the years, fare in Obama's America?
reason interviewed Ward Connerly in 1998. It's a very interesting, very relevant, conversation and is online here.
In the November issue of reason, Michael C. Moynihan reviews two new books on race and argues that "Barack Obama's 'post-racial' posture reflects a quiet but radical shift in liberal ideas about race in America."
Help Reason celebrate its next 40 years. Donate Now!
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The Nebraskans did the right thing in getting rid of this
terrible program. Its very sad Colorado did not, though I heard the
opposition ran a really dirty campaign full of
misinformation.
This issue is based on similar principles to the gay marriage ban
issue. Some people on both sides of the aisle have trouble with the
idea of equal opportunity...
Affirmative action is always going to be with us, and it will always be flawed. Maybe government institutions will avoid quotas based on race and sex, but corporations seem to be on board (as much for the public relations stuff as the not-getting-sued stuff, though the lawsuits--and there were some obviously horrible cases of discrimination out there--really got the whole thing started.) And even those governments that avoid race and sex go and make other distinctions in their doling out of revenues and services: small business v. big business, local, minority-owned (with majority financing? who cares?), and all sorts of gaming can be done when contract specifications are written.) To suggest that this Nebraska amendment will make their government fair to all is like saying a rainy day ends a drought. Government only plays fair when it has to.
How will affirmative action and other forms of preference,
which have (I think) declined as a hot-button issue over the years,
fare in Obama's America?
By defining affirmative action as a from of preference, you dispute
Soto's defintion, which claims "Ninety percent of affirmative
action has nothing to do with ... using race or gender to make a
hiring decision. It's to provide open access to opportunities."
What evidence do you have that your defintion of affirmative action
is more accurate than his? I think of affirmative action as efforts
taken to make sure the pool of candidates for a position includes
people from groups who have historically been the victims of
discrimination, which is closer to Soto's description than
Gillespie's.
Here is how the amendment is described on
the Nebraska ballot:
"A vote 'FOR' will amend the Nebraska Constitution to prohibit the
State, any public institution of higher education, political
subdivision or government institution from discriminating against,
or granting preferential treatment to, individuals or groups based
upon race, sex, color, ethnicity, or national origin in operating
public employment, education, or contracting. Existing court orders
would not be invalidated under the amendment. Bona fide
qualifications based on sex reasonably necessary to normal
operation of public employment, education or contracting, and
actions necessary to obtain federal funds through federal programs
would be permitted. A cause of action for violation would be
created. The amendment would apply to actions after its
adoption."
Thus, it won't force Nebraskans to surrender their precious federal
grants, nor will it affect 90% of affirmative action, assuming of
course that Soto is correct in saying that 90% of federal action
has "nothing to do" with race or sex discrimination. The amendment
even allows sex discrimination if it's a bona fide occupational
qualification, just like federal law allows it.
correction "assuming of course that Soto is correct in saying that 90% of affirmative action has 'nothing to do'" etc.
Now that race and gender preferences have been abolished, white
dudes won't have all the advantages anymore. Phew!
Wait, what?
I notice that there's an ad on this page for "HotHuskers.com." I suppose the words "Nebraska," "students" and "College" on the page are what did it. Or maybe the fact that this is a libertarian site.
What evidence do you have that your defintion of affirmative action is more accurate than his? I think of affirmative action as efforts taken to make sure the pool of candidates for a position includes people from groups who have historically been the victims of discrimination, which is closer to Soto's description than Gillespie's.
Your description may well be true in many business environments,
but it's simply not accurate as applied in university admissions.
In university admissions as practiced, it's clearly a case of
preference; there are wide ranges of test scores where the chance
for admission is close to one if one is black, but near zero if
white or Asian, and the graduation rates for black students are
clearly lower.
This is understandable, as simply making sure that people are
present in the pool doesn't guarantee hires, particularly if you
haven't addressed fundamental issues of qualifications-- and as the
NFL's Rooney Rule demonstrates, it can simply mean token interviews
if you already know you're going to hire a particular person.
Simply opening the pool isn't going to produce fast enough results
for some advocates when there are so many obstacles to
overcome.
I voted for the amendment, but it wasn't an easy decision. In addition to unintended consequences, I was also concerned about the lack of religion in the list of considerations. Overall, I thought it was a step in the right direction, so I voted "FOR". Problems with paid petitioners in Nebr. have always occurred with the hot issues, but if my recollection is correct, I think there were enough solid signatures in this instance to overcome any fraudulent ones.
Gillespie: when you say "state insititutions [sic],"
you mean that (mostly) privately funded universities still get to
discriminate, right?
What evidence do you have that your defintion of affirmative action is more accurate than his?
Because ultimately, with affirmative action, race and gender
are used to make hiring decisions for godawful, stupid
reasons.
A response to myself: Mad Max posted what it said on the ballot, which shows that the answer to my question is "yes."
"Bona fide qualifications based on sex reasonably necessary to
normal operation of public employment, education or contracting,[ .
. . ] would be permitted."
Can someone give me an example of a job that includes "bona fide
qualifications based on sex"?
Can someone give me an example of a job that includes "bona
fide qualifications based on sex"?
Various positions in the dance arts that cater to one sex or the
other. Some characters in plays. Not sure where it would apply
outside of the arts.
"Various positions in the dance arts that cater to one sex or
the other. Some characters in plays. Not sure where it would apply
outside of the arts."
Even then, if you've got a transgendered person, a person who can
physically pull off the look or feel of the opposite gender and
accomplish the same thing, the actual plumbing shouldn't be an
issue. Unless the job calls for (a) lactation or (b) ejaculation. I
. . . really can't think of that many that do. Porn industry
aside.
Okay, so I spoke prematurely. So, for example, what about a
doctor's office, say an OB/GYN or something, that is all-male and
wants to expand a client-base to customers who are more comfortable
with female doctors. In that case, they are specifically looking
for a female to fill the job description.
On the other hand, replace "male" with "white" and "female" with
"black", and it takes on a different tone. And replace "male" with
"black" and "female" with "white" and it *really* takes on a
different tone.
Is there any chance this is going to matter? The elites in our
society, politicians, business leaders, judges and lawyers, and the
people who run universities, all love affirmative action, and the
activists who support affirmative action are without scruple ("by
any means necessary.") If this isn't thrown out by some judge, and
actually gets to be a real law, it will just be ignored by policy
makers in government and academia.
http://www.bamn.com/
"Can someone give me an example of a job that includes "bona
fide qualifications based on sex"?
Bra sales'person'?
Is there any chance this is going to matter? The elites in
our society, politicians, business leaders, judges and lawyers, and
the people who run universities, all love affirmative action, and
the activists who support affirmative action are without scruple
("by any means necessary.") If this isn't thrown out by some judge,
and actually gets to be a real law, it will just be ignored by
policy makers in government and academia.
Maybe ignored until the current crop of leaders die off or
retire?
There is a lot less enthusiasm for AA among the next generation of
managers of all races and genders, especially those who need to get
stuff done. The competent person usually wins out over the person
who's only qualification is AA.
for bigbigslacker: All but one of my gym teachers was a man.
None of them were gay. But I do concede the point that eg, a girl's
gym "locker room monitor" can't be male, and none of those male gym
teachers was monitoring the girls' changing room, surely.
I don't know that I would consider medical experimentation
(clinical trials?) an occupation, though.
Joe is right. Affirmative action will be always be here. The
only way you can get rid of it is to end the "disparate impact"
discrimination suit. Under that legal theory, you don't have to
show any actual discrimination. You just have to show that the
percentage of widget makers in company X is lower than the
percentage of qualified and interested widget makers in the overall
population. Or in the case of promotion cases, that there is some
statistical deviation between the promotion rates of minorities
than those of similarly situated minorities. Thos cases become a
battle of statisticians. Those cases are never about actual facts
or motives, just results.
Smart companies hire their own statisticians and run the numbers
themselves. They then cook their promotion rates to ensure that the
numbers always look right to keep themselves from being sued. That
is affirmative action. It is government mandated affirmative action
that is pervasive throughout the economy. I don't think more than a
small percentage of the country understands labor law well enough
to know what it really means. Going all the way back to the redo of
the civil rights act back in 1991, we have not had an honest
conversation about this. If the country knew and understood how
labor law really works, a vast majority of it would want it
changed. But sadly, the race baiters and trial lawyers are able to
portray any talk of changing the system as racism and advocating a
return to legal discrimination.
'This will fall hard on Nebraska's African-Americans.
Both of them."
You have clearly never been there.
Here's the reason affirmative action needs to continue,
IMHO:
http://findarticles.com/p/articles/mi_m3495/is_2_48/ai_97873146
Until tests like this don't show bias, blacks are unfairly
disadvantaged in the job market and other areas.
That is, when people stop being fucking racists, affirmative action
can end. Until then, it needs to stay, IMHO.
John | November 7, 2008, 10:07am | #
Joe is right. Affirmative action will be always be here.
That was mitch, John.
You have clearly never been there.
US Census lists Nebraska's African-American population at 4.4%,
roughly 1/3 of their share of the American population.
Under that legal theory, you don't have to show any actual
discrimination. You just have to show that the percentage of widget
makers in company X is lower than the percentage of qualified and
interested widget makers in the overall population.
Your law professors would give you half-credit at best for this
answer. That is not the doctrine of disparate impact. You have to
show some overt act which resulted in the underrepresentation, not
just that underrepresentation exists; and even then, you have to
meet some standard to prove that the overt action wasn't related to
the advancement of a legitimate purpose (with the standard varying
based on whether it's a public or private institution, and other
criteria). You're right that the overt act doesn't have to based on
a conscious desire to discriminate, but just showing that a
business has a lower % of black employees than the city it's
located in doesn't meet the standard.
'This will fall hard on Nebraska's African-Americans.
Both of them."
4.4% in Nebraska
6.9% in Massachusetts or 3 total in joe math. must be the
celtics.
Rhiannon
"Various positions in the dance arts that cater to one sex or the other. Some characters in plays. Not sure where it would apply outside of the arts."
Even then, if you've got a transgendered person, a person who can physically pull off the look or feel of the opposite gender and accomplish the same thing, the actual plumbing shouldn't be an issue.
I believe that would be fraud. Or it should be.
Geotpf, it is percieved to be more dangerous to hire a minority than an easily fired caucasian. That's the more generous explanation.
I knew a guy in high school that moved here from Plymouth, MA.
He asked once "Why are there so many black people at this high
school?"
Cause blacks aren't supposed to live outside the big cities!
The amendment even allows sex discrimination if it's a bona
fide occupational qualification, just like federal law allows
it.
Does NE state government own a Hooters?
That is, when people stop being fucking racists, affirmative action can end. Until then, it needs to stay, IMHO.
Are you new to the human race or something?
Joe, that overt act can be setting up a merit system. For you to
claim "you have to show an overt act" is half true. It implies that
that overt act has to be something discriminatory, which it
doesn't. The act can be promoting people based on an objective
system that results in the stats not coming out correctly.
Nice try to defend the system by nitpicking, but it is government
sanctioned discrimination. It is immoral, wastes millions of
dollars and accomplishes nothing beyond getting a few undeserving
plaintiffs and trial lawyers rich.
The work-around here is to change public-sector affirmative
action policies from being race-based to economics-based; or even
better, to target people from within a low-income area.
As a matter of public policy, this is a wise move anyway, as the
link between race and wealth has been eroded - most
African-Americans are middle-class today - while the link between
geography and wealth remains as strong as ever, if not
stronger.
Such a program would still disproportionately benefit
African-Americans and Latinos - the race/wealth connection isn't
completely absent, obviously.
I am well aware of the overt act part. It is just not a significant enough difference to warrant talking about in this context. Since I don't have a guilty conscience over defending an immoral system, I don't see the need to pretend that the overt act requirement in any way makes the system anything other than government mandated discrimination against disfavored groups.
"The work-around here is to change public-sector affirmative
action policies from being race-based to economics-based; or even
better, to target people from within a low-income area."
That sounds nice, but that is crazy to. What am I going to quit my
job and smoke crack so my kid can get into a school he couldn't get
into otherwise? They have tried that in Texas with the 10% rule.
What happened is a bunch of kids who were not prepared got into UT
and A&M, flunked out and were replaced after two years by kids
who went to sattilite campuses for two years when they should have
by objective criteria just gotten into the mainline schools. I used
to support that until I saw the screwy results it producted in
Texas.
John,
Joe, that overt act can be setting up a merit system. It
can be, but it would require showing that the system you use to
measure merit is discriminatory. For example, if SATs are the sole
measure, despite the fact that factors other than merit effect SAT
scores (factors which tend to work against poorer or minority
test-takers). Or, if the "merit" being measured isn't actually
relevant to the job - for example, if a softward firm had an
upper-body strength test and was therefore exluding almost all
women. Again, this would require a positive showing by the
plaintiff.
The act can be promoting people based on an objective system
that results in the stats not coming out correctly. No, you'd
have to show some flaw in the system.
Nice try to defend the system by nitpicking, The fact that
you are unaware of the legal issues involved here doesn't make them
nits.
but it is government sanctioned discrimination. It is immoral,
wastes millions of dollars and accomplishes nothing beyond getting
a few undeserving plaintiffs and trial lawyers rich.
Thank you for sharing your feelings.
I'm talking about legal doctrines, and you're speculating on my
feelings.
This is what we call "asymetric warfare."
Legacies, of course, are still okay. Because the idiot scions of privilege need a leg up.
Bypassing for the moment any non-consequentialist concerns for the moment , given how incredibly divisive AA is one has to ask what results outweigh such acrimony over it?
I would note of course what is well documented: that the vast majority of the black population had moved out of poverty by the implementation of AA. Essentially it was attacking a problem that was heading out the door in the first place.
Joe the standard for establishing an overt act is so low as to be non-existent. These cases are decided on numbers and numbers alone. If your numbers add up as a plaintiff you win. The "overt act" is a mere formality. That is how the cases work in practice. Few if any Plaintiffs ever had good numbers but failed to establish an overt act and few if any defendents ever have good numbers and don't win. IT is defacto affirmative action.
Seward,
There has always been a loud straing of "the darkies get all the
breaks, I'm being oppressed" in American politics.
I don't think Affirmative Action causes this "divisiveness," it's
just the current target for it.
I would also say the lived experience of integration that millions
of people have had due to affirmative action, and the desegregation
of the public and business spheres it has brought about, have had a
far greater effect on race relations than any backlash it
engendered.
Joe the standard for establishing an overt act is so low as
to be non-existent. These cases are decided on numbers and numbers
alone. If your numbers add up as a plaintiff you win.
If that were the case, we would be seeing far more successful
discrimination suits than we actually do, given the still
widespread disproportionate representation of African-Americans and
Latinos in so many fields.
"If that were the case, we would be seeing far more successful
discrimination suits than we actually do, given the still
widespread disproportionate representation of African-Americans and
Latinos in so many fields."
It is by the number of "interested and qualfied" people in the
area. If I run a doctor's office in North Philadelphia, they don't
look at the black population of my area as a whole, but only the
black population of doctors who are interested and qualified in the
area. That changes the numbers. Since there are few qualified
minorities in a field, the firms in that field are expected to have
lower numbers of minorities.
I think Soto is including "outreach" programs to try to get
minorities to apply for positions as affirmative action, which is
probably fair and unobjectionable, as far as I am concerned.
However, anything beyond that, including "tie goes to the minority"
and especially including differential standards based on race or
gender (as is practiced by universities), should be illegal for any
state to engage in.
I do find it somewhat amusing that the work-around proposed by joe,
if it amounts to anything more than outreach in the zip codes
identified as being economically disadvantaged, amounts to just the
kind of redlining that banks used to do. Only in reverse, so that's
OK, I guess.
I would also say the lived experience of integration that
millions of people have had due to affirmative action, and the
desegregation of the public and business spheres it has brought
about, have had a far greater effect on race relations than any
backlash it engendered.
The ends justify the means?
Only in reverse, so that's OK, I guess.
Uh, yeah, sort like Patton's march through France was just like
Rommel's, only in reverse.
The ends justify the means?
What else could possibly justify any means, if not the ends they
produce? Anyway, there was an actual argument made about ends, so I
replied by noting that there were other ends. Sue me.
Other difficulties with AA:
-Who gets to be a preferred group? What about Asian-Americans,
especially in Western states, which have a history of
discriminating against Asians? Strangely enough, Asian-Americans
don't make the cut - they aren't a preferred group in the Western
states, which means that they get lumped together with the mean old
oppressive whiteys.
-What about people of mixed race? The marital and romantic
preferences of Americans haven't always been segregated along
uniracial lines, not even when segregation was legally required. So
we have people with part white ancestry, part black, part Asian,
etc. Sometimes it's difficult to figure out a given American's
exact proportion of preferred versus no-preferred genes. Do we use
the "one drop" rule that any preferred ancestors makes you a member
of a preferred group? Or is it one-eighth, like the old segregation
laws in Virginia? Or will you get partial credit based on the
proportion of preferred ancestry? And since women are a preferred
group, and since we all have 50% female ancestry, does that makes
us women under the one-drop rule? If President Obama's daughters
are one-fourth white (assuming Mrs. O is pure-blooded
African-American), does that mean they're 3/4 preferred and 1/4
non-preferred? If One of the President's daughters gets into
college based on Affirmative Action, will they be have to go to
classes only 3/4 of the time, and stay out of class the other 1/4
in penance for their contaminated white blood?
joe,
I don't think Affirmative Action causes this "divisiveness,"
it's just the current target for it.
I think it does. Indeed, I think there are numerous
consequentialist and non-consequentialist reasons for finding AA
quite problematic. Indeed, if you are suggesting that opposition to
AA is based solely on racism then you are sadly misguided.
I would also say the lived experience of integration that
millions of people have had due to affirmative action, and the
desegregation of the public and business spheres it has brought
about, have had a far greater effect on race relations than any
backlash it engendered.
I've already demonstrated to you that the U.S. is about as
segregated as it was in the mid-1960s (if we take school
integration as a proxy for such). Apparently most people like to
live in neighborhoods where people look, etc. like they look,
etc.
I'm not saying "solely," Seward, but "largely," and I'm not
talking about "opposition to affirmative action," but about race
relations in general, and white resentment in particular.
I've already demonstrated to you that the U.S. is about as
segregated as it was in the mid-1960s No, you haven't. You
demonatrated that medical school enrollment is lower than it was in
the 80s.
Seriously, you can cherrypick all the data you want - do you
seriously want to stand by the statement "America is about as
segregated as it was in the mid-60s?" Really?
Mad Max,
The main problem with AA is that it involves the government the
outcome of who wins and loses. Invariably this will create interest
groups, rent seeking, etc. and that IMHO means suboptimal outcomes
and government failure. Indeed, that is the primary problem with
any type of government regulation.
joe,
No, you haven't. You demonatrated that medical school
enrollment is lower than it was in the 80s.
Actually, you are wrong. I provided you with a link ot a study out
of Harvard I believe which showed that schools are about as
segregated as they were in 1965. You made some remark, if I recall
correctly, about the highwater of desegregation being in the
1980s.
...do you seriously want to stand by the statement "America is
about as segregated as it was in the mid-60s?" Really?
Schools represent the neighborhoods which they draw from
presumably. If schools are about as segregated as they were then
presumably neighborhoods are as well. People apparently do not seek
out diversity (of any variety) and apparently they settle in places
where people look like they do, think like they do, etc.
Addendum: I went back to the wikipedia article I drew my original
comments from, and here is a direct quote from it:
According to the Civil Rights Project at Harvard University, the
desegregation of U.S. public schools peaked in 1988; since then,
schools have become more segregated. As of 2005, the proportion of
Black students at majority white schools was at "a level lower than
in any year since 1968." [5]
Geotpf,
Do you have a studywitht he same methodology with Chinese names,
Indian names, and other ethnicities? Perhaps it is a bias against
anyone with an "unusual" name, and not a bias against a particular
race.
joe,
Also, I believe that the data suggests that really it is only in
the political world that government efforts have paid off regarding
diversity representation. Which is a good thing, IMHO. In other
words, things like the Voting Rights Act and so forth have led to
positive gains in that area. It shouldn't be that surprising though
that such things are hard to translate into the private sector.
I often wonder how Professional sports would be different if
they used some AA. If blacks only make up 15-17% of the entire
population then IMO it would only be fair to have one black guy
playing for every 3 or 4 whites. Wonder how this plan would go over
with the current setup of 90% black players? If applied the same as
AA how long would Pro Sports survive if we allowed medicore players
on the team simply to fill a % quota?
This AA issue has always baffled me. How does a segment of society
that only makes up such a small percentage of the whole figure that
they are entitled to at least 50% of every type of job or position.
Even if ever last black was qualified for every job they applied
for there are simply not enough blacks to fill 50% of the jobs. But
since when has Washington let simple math stop them from their
choices.
I see where we're missing each other, Seward. You're talking
about residential segregation, while I'm talking about integration
in the business and public realms.
You're talking about who people's neighbors are, I'm talking about
how their bosses, coworkers, and business contacts are.
See, by "schools," I assumed you were talking about colleges,
because the integration of colleges is an effort to build those
social and professional networks that Brown v. Board discusses, and
which affirmative action is focused upon. Now I see that you're
talking primarily about grade school, as a proxy for residential
integration. On this, I agree with you.
You must agree that the business, social, and political realms are
far less segregated than they were in the mid-60s, right?
I'll note that there hasn't actually been an affirmative action
push in the residential realm - that housing has been dealt with
using standard nondiscrimination efforts - as opposed to
professions, government, and college admission.
Seward,
In between what you call "the private sector" - which you are using
to refer to neighborhoods and homes - and politics is the business
world.
What else could possibly justify any means, if not the ends
they produce?
The morality of the means themselves.
If choosing between 2 moral means, by all means (heh) look at the
ends they produce.
If choosing between a moral and immoral mean, there is no need to
even check out the end. Always choose the moral mean and deal with
the end you get.
If choosing between two immoral means, dont.
joe,
You must agree that the business, social, and political realms
are far less segregated than they were in the mid-60s,
right?
Well, I already mentioned politics. As for the rest, I have no
idea. I've never looked any data up on the subject. Well, beyond
the low representation of African-Americans in the field of
medicine. I'd be more than happy to look at any data you have on
the subject.
I'll note that there hasn't actually been an affirmative action
push in the residential realm...
If that did happened it would be a substantial assault on choice
and liberty.
Can someone give me an example of a job that includes "bona
fide qualifications based on sex"?
New York Times Whore Critic?
New York Times Whore Critic?
Nah. They'd just have Michiko Kakutani do that too.
robc,
How else are to judge how moral means are, if not by looking at
their effect on people? What else would make a means immoral?
Seward,
If that did happened it would be a substantial assault on
choice and liberty. Agreed.
proposition is being challenged in court, on the grounds
that the signatures collected to put in on the ballot were
fraudulent.
WTF?? The reason for requiring so many signatures on a petition to
get a referendum on the ballot is to have some way of screening out
frivolous proposals. You know, the ones that no one supports and
that would be a waste of everyone's time of they were included on
the ballot. I would think that once the referendum gets a majority
of the voters, it's pretty obvious that's not a problem.
I was glad to see the Nebraskans vote AA away. I have always been outspoken against it, personally always felt it was a terrible program, it'd just legal discrimination imho.
This will fall hard on Nebraska's African-Americans. Both of
them.
There are few more than two, but I'm pretty sure they are all
either (a) playing on the University of Nebraska football team, or
(b) working for Burlington Northern Santa Fe.
I often wonder how Professional sports would be different if
they used some AA.
Indeed. Bring back the white running back! (Not to mention white
wide receiver, cornerback etc.)
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