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UC Davis Law School Commencement 1978: California Supreme Court Justice Stanley Mosk’s Finest Hour

Students were enraged over his opinion for the California Supreme Court holding race-preferential admissions unconstitutional in Bakke v. University of California Regents. They demanded that he withdraw as Commencement speaker. He refused. “Judges,” he told them, “cannot be intimidated,” and “Lawsuits are won and lost in the courtrooms, not in the streets.”

Saturday will be graduation day at UC Davis Law School (as well as many other law schools). Congratulations to all the graduates!

I don't know who the Davis graduation speaker will be this year, but forty years ago, it was Justice Stanley Mosk of the California Supreme Court. This raised a hullaballoo. Although students had voted Mosk one of their preferred speakers back in the autumn, he was Public Enemy No. 1 to some students. Calling themselves the "Third World Coalition," a group of them demanded him to withdraw.

What crime had he committed to cause this left-of-center student outrage? Up until recently, Mosk had been considered one of the most liberal judges on any state supreme court in the country. His credentials as a civil rights activist were impeccable. In his personal life, he had quit fraternal organizations like the Elks and the Eagles to protest their refusal to admit blacks as members. As Attorney General of California, he had banned the Professional Golfers Association, which banned African-American players, from using state golf courses. As a judge, he had outlawed restrictive racial covenants (before the U.S. Supreme Court did so in Shelley v. Kraemer).

But Mosk had the audacity to take his commitment to equality seriously. He had been fighting for decades for equal treatment, and he was not able to turn around on a dime and approve the preferential treatment based on race practiced by colleges and universities in the name of "affirmative action." When the case of Bakke v. University of California Regents reached the California Supreme Court he wrote an extremely eloquent opinion for the majority condemning the UC-Davis Medical School's race-preferential admissions policy as unconstitutional. Read the whole opinion if you get a chance. Here is a taste:

To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.

I liked the language so much, I used it in the title to an article of mine: A "Dubious Expediency": How Race-Preferential Admissions Policies on Campus Hurt Minority Students. In this blog post, I repeat a little on what I wrote in that article.

It's unlikely Mosk was prepared for the onslaught that followed his opinion striking down Davis's affirmative action plan. The protests continued to build till the U.S. Supreme Court decided the case in June of 1978. Hundreds of placard-carrying demonstrators gathered beneath his office window to denounce his decision and demand its reversal. Thousands rallied elsewhere. When visiting local campuses, Mosk would routinely find himself greeted by picketers and hecklers.

At the Davis Commencement, about 50 to 75 picketers—mostly students, but also some from outside groups--greeted those who entered the building. When Mosk was introduced at the ceremony, about 34 of the 139 graduates, along with about 150 guests, walked out. But Mosk was undaunted. "Judges," he told the crowd, "cannot be intimidated," and "Lawsuits are won and lost in the courtrooms, not in the streets."

Mosk was never forgiven for this (and a couple of other) deviations from liberal orthodoxy, not even in death. In his 2001 New York Times obituary, he was accused of having a knack for anticipating and bending with political currents. In fact (for good or ill), Mosk had backbone rarely found in judges.

Weirdly, it is U.S. Supreme Court Justice Lewis Powell, a mild-mannered Nixon appointee, who ended up being beloved by the Left. Powell's fence-sitting opinion in Bakke effectively overturned Mosk's opinion and opened the door to ever-greater preferential treatment based on race. It was Powell, not Mosk who took the easy route: Bend with the political currents.

Unlike the irascible Mosk, the gentlemanly and accommodating Powell was an unlikely civil rights hero. A chairman of the Richmond School Board between 1953 and 1961 and a member of the Virginia Board of Education—the crucial years following the Supreme Court's decision in Brown v. Board of Education (1954)—Powell was in a position to take a leading role in dismantling Jim Crow. But Powell, who later went on to be president of the American Bar Association, did not distinguish himself as an advocate of desegregation "with all deliberate speed." As Jerome Karabel in The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton put it:

His own carefully worded assessment of his service in these positions was that it had taken place when the pace of desegregation had been "necessarily more measured than civil rights leaders would have liked." But this was a rather generous interpretation of his role in the years after the Brown decision, for when Powell stepped down as chairman of the Richmond School Board in 1961, after eight years of service, only 2 of the city's 23,000 black children attended school with white children. And during his two terms with the state Board of Education, Powell's sympathetic but fair-minded biographer reports that "he never did any more than was necessary to facilitate desegregation …[and] never spoke out against foot dragging and gradualism."

I mean no disrespect to Lewis Powell, who I believe was on balance a good jurist. But when the right thing to do was stand on principle in the face of demands for expedience, Stanley Mosk was the one to call on, not Powell. Powell's reputation as a serious supporter of civil rights is undeserved. A former ABA president, he could be described as a conciliator, or he could be described as a man who was disinclined to rock the boat. Both were accurate; the two description of Powell's temperament are one and the same. Whether it is a virtue or vice depends on the situation.

Given the mounting evidence that race-preferences make minority students less likely to succeed, Mosk's use of the term "dubious expediency" seems prescient.

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  • loveconstitution1789||

    Mosk has some garbage judicial decisions.

    All one has to do is sift through his opinions to see a pattern of refusing to follow Constitutional principles and therefore should have been impeached years ago.

  • Rossami||

    re: "should have been impeached years ago"

    You do know that he died 17 years ago, right? Kind of hard to impeach him now.

  • Scarecrow Repair & Chippering||

    You mean 212 years in the future, no?

  • UVaGrad||

    IMPEACH RICHARD MOSK FROM THE COURT OF APPEAL, SECOND DISTRICT

    DO IT BECAUSE DAD DESERVED IT

  • darkknight9||

    A controversial speaker at a college, with no discussion following about extra security guards and who would have to foot the bill?

    They seem to have done certain things so much differently in the past. :)

  • Sarcastr0||

    Yeah, we used to use the national guard.

    Didn't end great.

  • darkknight9||

    Hey now. My go to snark and humor man just sucked all the fun outta that one... Rough mornin or somethin? :)

  • jph12||

    "Yeah, we used to use the national guard.
    Didn't end great."

    We did? When?

  • Sarcastr0||

  • jph12||

    I was hoping you were smart enough to have a different example. That's what I get for trying to give you a little bit of credit. Do you not know that the governor sent the national guard to Kent State to quell a multi-day riot, that states still use the national guard to quell riots, or both?

  • Sarcastr0||

    This is not an area where context matters. Regardless of why the guard was originally sent out, on that day they were used to stop a protest, and ended up meeting nonviolent protestors with bullets.

    But the important thing is that my point of raining on darkknight9's parade was a resounding success!

    [Sorry dk9, missed the tone and took it for sincere, if low-hanging fruit]

  • jph12||

    "This is not an area where context matters."

    Yes it is. Context only matters.

    "Regardless of why the guard was originally sent out, on that day they were used to stop a protest, and ended up meeting nonviolent protestors with bullets."

    A protest that the school reasonably believed included many people from the same group of rioters that had already burned down a building on campus and attacked the first responders trying to put it out. The decision to deploy the national guard was reasonable and is consistent with how the national guard is still used today. The decision to shoot wasn't. Those are two different questions.

    "sincere, if low-hanging fruit"

    It's only low hanging fruit if you ignore what darknight9 actually said (I know that's kind of your thing) and what actually happened at Kent State. Kent State had nothing to do with providing security for a controversial campus speaker or anything trivial like that.

  • Sarcastr0||

    My point is 'reasonably believed' falls away when you have dead unarmed students. I could use your exact same rhetoric to absolve DoJ for Waco.

    As for dk9 - I got excited about 'They seem to have done certain things so much differently in the past.'

  • jph12||

    "My point is 'reasonably believed' falls away when you have dead unarmed students. I could use your exact same rhetoric to absolve DoJ for Waco."

    So you don't know what happened at Waco either? Perhaps you should stop with the historical comparisons.

  • darkknight9||

    No problemo. :) Sincerity aside, I am usually all about the low hanging fruit. :D

  • darkknight9||

    I got the point, you just don't seem like your usual self today. (this comment is sarcasm free) :)

  • loki13||

    "Mosk was never forgiven for this (and a couple of other) deviations from liberal orthodoxy, not even in death. In his 2001 New York Times obituary, he was accused of having a knack for anticipating and bending with political currents."

    This is why Gail Heriot cannot be taken seriously at VC. I cannot trust a single thing she relays; even when she doesn't rely on red meat, or conjuring the motives of vast groups of people, we get passages like this.

    Go read the source for her claim. If you do, you will see that this isn't an accusation and it has nothing to do with the Bakke decision; instead, it's about the 1986 CJ Bird (and others) recall. Overall, it's an incredibly laudatory obituary, and states that when he dies, "he was the only liberal on the seven-member court."

  • Eidde||

    Here we go:

    "As a member of the State Supreme Court, he often produced opinions separate from the majority. Though opposing the death penalty, he also showed flexibility and a knack for anticipating political currents. He survived a 1986 election that, sweeping Chief Justice Rose Bird and two fellow liberals from the court, cleared the way for the first conservative majority in 30 years. When he died, he was the only liberal on the seven-member court."

  • Eidde||

    Oops, the original post linked to it already.

  • TwelveInchPianist||

    "Mosk was never forgiven for this (and a couple of other) deviations from liberal orthodoxy..."

    Perhaps the CJ Bird recall was one of the "couple of other" deviations.

    Also, pot, kettle...

    Loki13, commenting on recent history:

    "Nixon- Impeached & Convicted (only one!)."

    People this ignorant about basic facts should be calling others out.

  • Eidde||

    Wasn't that Walter not Richard?

  • TwelveInchPianist||

    One would hope, but no. Loki was referring to President Nixon. link

  • Eidde||

    Paywall.

  • loki13||

    Gee, it's nice to have stalkers.

    I just wish I could have a higher class of them. Kind of pathetic, really.

  • TwelveInchPianist||

    Lol. You think you've got it bad, think about Prof. Heriot.

  • loki13||

    Really? Is there any evidence she has read a single comment?

    Anyway, it's not worth commenting, and I rarely do because of the .... well, people like you that are left. I am happy that you have found a place. 12", where you fit in.

  • TwelveInchPianist||

    "I rarely [comment] because..."

    You seem to comment quite frequently on the new conspirator's posts, and they are all nasty comments about how she doesn't deserve her platform.

    Was your most recent non-Heriot comment this, where you called out another commentor for claiming that Judge Doug Martin was a man?

  • Bob from Ohio||

    He seems to be taken Heriot very personally. Very hostile from the very beginning.

    Did she give him a bad grade? Turn him down for a date?

  • Careless||

    loki's post-trump meltdown has been the most severe of the long-time commenters.

  • Sarcastr0||

    That kind of petty pedantry is below you, TiP.

  • TwelveInchPianist||

    Thanks for the input, Sarcastro.

  • TwelveInchPianist||

    I will try to avoid attacking Loki by reading his comments in the future.

  • Sarcastr0||

    Heriot does seem to have him more vehement than usual.

    Though I do sympathize - I find her arguments fallacious to a point of irritating in a way other committed partisans' mere bluster is merely amusing.

  • Rev. Arthur L. Kirkland||

    Prof. Heriot does not engage in mere partisan bluster.

    She is an active partisan, willing to switch her party registration to game the system to advance her partisanship.

  • bernard11||

    How is surviving a recall vote a deviation from liberal orthodoxy?

    And Heriot tries to make it sound like the NYT was accusing him of bending his decisions for political purposes.

    Yet more dishonesty.

  • Eidde||

    The Times was speaking in the context of Mosk's judicial opinions, though this being the NYT, they may not have meant it as an insult. Though it objectively is.

  • Eidde||

    I wouldn't call Powell a good jurist unless we believe that "playing well with one's peers" is the sign of a good judge on a high court where the urgent issues of the day involved the need to *resist* bad decisions without playing nicely.

  • Sarcastr0||

    But Mosk had the audacity to take his commitment to equality seriously. He had been fighting for decades for equal treatment, and he was not able to turn around on a dime and approve the preferential treatment based on race practiced by colleges and universities

    More question begging. Shocking.

    Your implication that anyone who is for affirmative action isn't taking equality seriously is as eye-rollingly facile as any of those you call out for insisting Mosk must be racist for taking a position against affirmative action.

  • NToJ||

    The narrower and more charitable implication would be that anyone who is for affirmative action isn't taking seriously equal treatment of race-based preferential admissions. I also think I get what you're saying; people who support affirmative action may support temporary (or not?) race-based preferential treatment to the ultimate end of equalizing outcomes for members of certain racial minorities.

  • NToJ||

    Ugh that's poorly worded. Should be that anyone who is for affirmative action isn't taking seriously equal treatment of races in admissions. I think that's also true.

  • Sarcastr0||

    Only for a cartoonishly narrow definition of equal treatment.

    Deliberately ignoring the reasoning of your opponents in order to accuse them of being inconsistent is...childish is the word I'd choose for it.

  • TwelveInchPianist||

    Isn't the legal position of AA more or less that it is conceitedly unequal treatment, but that unequal treatment in the case of some AA programs survives strict scrutiny?

  • nonzenze||

    If you sit and try to steelman AA for a bit, you can come up with a lot better positions for it. Maybe after a while you might be able to pass the legal/ideological Turing test for it :-P

    [ Note: the practice of steelmanning is not suppose to discover what the actual reasoning by supporters is. It's not rational basis review. ]

  • Brett Bellmore||

    I think maybe you misunderstand rational basis review, which also doesn't bother to discover what the actual reasoning by supporters is.

    Doesn't even bother to require that it be rational, as such. It's enough that there's some basis that might have hypothetically been used to support the law, which isn't gibbering insanity.

  • Brett Bellmore||

    Where "cartoonishly narrow" just means, "principled and consistent".

    The race hucksters want racial discrimination they approve of to not be legally treated as racial discrimination. Rejecting this isn't "cartoonishly narrow".

  • Sarcastr0||

    Yes, I'm sure you believe that it is inconsistent to be against cutting blacks out of opportunities but for allowing that blacks may not have quite the same access to the meritocracy that whites do.

    But you can't just insist it's inconsistent, accuse all who disagree of being race hucksters, and then call that an argument.

    You're still offering a better argument than the OP, though.

  • Brett Bellmore||

    "Yes, I'm sure you believe that it is inconsistent to be against cutting blacks out of opportunities but for allowing that blacks may not have quite the same access to the meritocracy that whites do."

    Yeah, look at the argumentative way you have to phrase it, so even your own conscience doesn't shout you down. If you discriminate against blacks, it's "cutting blacks out of opportunities", but if you discriminate against whites or Asians, it's "allowing that blacks may not have quite the same access to meritocracy that whites do."

    You can't even objectively describe what you advocate!

  • Sarcastr0||

    I could say the same thing about your framing it as an extremely course grained argument that all racial distinctions are the same and bad.
    Most debates can be reduced to framing.

  • jph12||

    You could? Show, don't tell.

  • Michael Ejercito||

    So how is affirmative action different in principle from apartheid?

  • Michael Ejercito||

    So how is affirmative action different in principle from apartheid?

  • Sarcastr0||

    Different purpose. Different method. Different target. Different institutions. Different scope. Different history. Different result.

  • jph12||

    Still waiting for that demonstration of how Brett Bellmore can't objectively describe what he advocates.

  • Brett Bellmore||

    I advocate that government agencies and the law treat people utterly without regard to their race as a matter of legal obligation, and that the private sector treat people utterly without regard to their race as a matter of moral obligation, with the understanding that the private sector are entitled as a matter of right to discriminate, (Because the 14th amendment expressly restricts its reach to state actors.) and merely oughtn't so discriminate because doing so is irrational.

    And I'm fully aware that this will result in disparate impact, because the races are not similarly situated, and I'm cool with that.

  • Sarcastr0||

    I'm not entirely tracking what you think I said, but the coarse graining to 'this is discrimination, and that's discrimination - they're identical!' is not exactly objective.

  • jph12||

    How is it "not exactly" objective. Again, show, don't tell.

    Do you really not understand why Brett Bellmore said "You can't even objectively describe what you advocate!" above?

  • Sarcastr0||

    It is an arbitrary framing that assumes the answer.
    Burden is on you to prove you've chosen the perfect objective framing that happens to conveniently endorse your thesis.

  • jph12||

    "Burden is on you to prove you've chosen the perfect objective framing that happens to conveniently endorse your thesis."

    No it isn't. You said you could do the same thing that Brett Bellmore did, so do it. Point out the semantic games that he has to play to make his position more palatable.

    "It is an arbitrary framing that assumes the answer."

    No it isn't. Not only isn't it arbitrary, but this isn't about framing. It's about positions. You think it's okay to discriminate against certain groups and in favor of other groups in certain situations. Others disagree.

    "the coarse graining to 'this is discrimination, and that's discrimination - they're identical!' is not exactly objective"

    I should also point out the fallacy in this argument. I don't have to believe that all racially-based discrimination is identical to believe that all racially-based discrimination by the government is impermissible. I do in fact believe that discrimination against someone because you don't like their race is worse than discriminating against someone because you think someone of another race needs an assist. That doesn't make the latter acceptable though.

  • NToJ||

    I don't think you should accuse the author of deliberately ignoring the reasoning of her opponents since the paper she cites addresses them on their own terms; the author believes that affirmative action is worse for black people too.

    I think this is getting too snipey and am worried that we're talking past each other. I would not have thought it controversial that support for affirmative action is inconsistent with race-neutral admissions, and had also assumed that when the author said "equal treatment" she was using it in relation to race-neutral admissions.

  • Sarcastr0||

    Dunno if we were getting snippy, but I agree speculating back-and-forth about the thoughts in Heirot's head is not going to get us anywhere.

  • Rev. Arthur L. Kirkland||

    Your implication that anyone who is for affirmative action isn't taking equality seriously is as eye-rollingly facile as any of those you call out for insisting Mosk must be racist for taking a position against affirmative action.

    The Volokh Conspiracy and reason.com favor affirmative action so long as (1) it doesn't help blacks and (2) it benefits conservatives, especially conservative academics. Reason.com features an illustrative report of a Prof. Langbert's contribution to the right-wing whining on this point today.

  • apedad||

    I'm glad Prof. Heriot emphasized "affirmative action" although it's obvious she doesn't understand the concept of affirmative action because she described it as "preferential treatment."

    The concept of affirmative action programs is to assist historically disadvantaged minorities to become undisadvantaged.

    This is a rational approach which enlightened societies can take to better all of society's members.

    It is not in preferential treatment.

  • Eidde||

    So you should get the benefit of racial preferences if you can show that your skin color is the same as the skin color of people whose historic oppression has been recognized by the government. But it's not special treatment even though you yourself don't have to show any history of disadvantage.

  • Eidde||

    Or you can show that you're a woman, which should be easy to prove since apparently the government isn't supposed to challenge anyone's claim about what sex they are.

  • Eidde||

    Also, the government doesn't seem to recognize ethnic Chinese, Japanese and (Asian) Indians as traditionally oppressed groups even though for years the immigration and citizenship laws discriminated against them, and California restricted their landholding rights, etc.

  • Sarcastr0||

    Even if taken as valid, none of your objections (it's not individualized, what about Asians, and some cartoonish idea of how being transgender works) mean affirmative action is a lie or doesn't accomplish anything.

    And, of course, each of your points is pretty disputed.
    Not individualized - college applications are by necessity full of non-individualized metrics. School, Activities, etc.
    What about transgenders - First, we haven't had much of a problem of insincere transgendered despite right-wing parades of horribles. Second, being transgendered is currently a pretty disadvantaged minority, so I don't see them claiming the benefits of some less disadvantaged minority as a problem.
    But the Asians tho - each minority has a different path. Asians do pretty well educationally. But to use that to insist blacks or American Indians better act the same is pretty dumb.

  • Brett Bellmore||

    "Not individualized - college applications are by necessity full of non-individualized metrics. "

    But this is exactly what's objectionable about racism: Treating an individual standing in front of you as just an interchangeable instance of the group they belong to. Treating them according to the color of their skin, instead of the content of their character.

    Some black guy rapes a woman, you ride out and hang a random black guy, because, why does it matter which black guy you hang? They're all equally guilty. That's racism.

    Some white guy discriminated against blacks? Hey, no reason to bother figuring out if the applicant in front of you is one of those guilty whites, just disadvantage him to aid a black guy who you also don't bother to individually inquire about.

    That's ALSO racism. It's just racism you don't mind, because you're that sort of racist.

  • Sarcastr0||

    You'd have a point if there were quotas. But there are not.

    Society treats black folks collectively in all sorts of ways, it's pretty myopic to say it's all the same.
    Collective guilt != affirmative action. Different purpose, different method, different institution.

    And your argument that affirmative action is retributive against whites is just silly.

  • Brett Bellmore||

    "You'd have a point if there were quotas. But there are not."

    And you might have a point if that wasn't a steaming heap of nonsense. Goals you don't permit yourself to fall short of ARE quotas. Year after year after year, these institutions do whatever they have to, to exactly achieve their "goals".

    And you're going to pretend they're not quotas.

    "Collective guilt != affirmative action. Different purpose, different method, different institution."

    "My discrimination is ok, because I like my motives. That makes it different when I racially discriminate!"

  • NToJ||

    "Society treats black folks collectively in all sorts of ways, it's pretty myopic to say it's all the same."

    It's wrong when government treats [pick a color] folks collectively in any way. Wouldn't you agree?

  • Eidde||

    I'd perhaps trust these "non individualized metrics" if the admissions officers were experts administering measurable criteria, predictive of performance, in a nonideological way.

    But who actually believes that admissions officers administer their "individualized" criteria like this?

    Even apart from race and sex, what evidence do they have that the people they accept on "individualized" grounds are better qualified than the ones they turn down?

    It's a bit rich for these institutions to set up these "holistic" "individualized" policies and then say "well, racial preferences aren't any worse!"

  • Eidde||

    Also,

    I didn't say affirmative action "doesn't accomplish anything." It helps colleges get the "appropriate" racial balance at their institutions. That's an accomplishment, isn't it?

    "But the Asians tho - each minority has a different path. Asians do pretty well educationally. But to use that to insist blacks or American Indians better act the same is pretty dumb."

    I don't understand this point at all, perhaps because you offer no evidence in support of it, and because you use broad absolutist language ("better act the same").

    If "Asians do pretty well educationally," why not look at what they do and see if it works for you?

    Supporters of affirmative action seem to think they get political milage out of the claim that the "only" thing they're doing is making Whitey McWhitington III surrender some of his privilege and stand aside so hardworking poor minority students can have a chance.

    Naturally they're annoyed when Asians get mentioned, because it spoils that narrative, so they try to come up with ways to focus attention back on all the privileged white prep school boys with numerals after their names.

  • Sarcastr0||

    Lets start again.
    So what do you think liberals believe the purpose of Affirmative Action is?

  • Perseus`||

    To assuage their feelings of guilt (which like original sin can never be sufficiently atoned for) while increasing their political power by creating a class of people dependent on them (Justice O'Connor's timer will be flipped over every 25 years so the grains of sand will never run out). Win-win for them!

  • Eidde||

    "what do you think liberals believe the purpose of Affirmative Action is?"

    Ah, the ideological Turing Test.

    If by "liberals" you mean left-wing prgressives, they believe the purpose of Affirmative Action is

    -Racial Justice

    -Compensating for past injustice

    -Correcting for existing systemic racism which holds POC and women down.

    -Promoting diversity, so that people in businesses and schools get to know a variety of people from different cultures, thus promoting mutual understanding.

    In this view, since affirmative action is so obviously right and just, anyone who's (a) intelligent and (b) a decent person will be for affirmative action.

    Therefore, anyone who's against affirmative action is either evil or a dupe of crafty rich right-wingers trying to distract the white working class from the real source of their problems, which is rich white conservatives.

  • Eidde||

    Also, the opponents of affirmative action cynically use Asians as human shields when their true agenda is white supremacy.

  • Eidde||

    Also, what about alumni preferences and sports scholarships? Did you ever think of that, you deluded clinger?

  • Sarcastr0||

    Thanks, Edde. And Perseus for showing us all what not to do.

    You added a bunch of chaff about false consciousness and assuming bad faith in the opposition that's not specific to the left, nor to affirmative action. Forgive me if I ignore those as (sadly) standard political background and move on.

    I didn't really mean the partisans, I meant the boring policymakers. So not reparations, but you more or less hit the target with your last two: jump-starting the cycle of diversity leading to tolerance, and compensating/addressing a tilted playingfield.

    So my plan is to use those two and apply your objections above. Which I will do below.

  • Sarcastr0||

    Both the above benefits are based on race, so broad preferences make sense versus an individual 'did racism hurt you personally' interrogation.

    The idea of insincere transgenders remains a purely hypothetical concern,

    and Asians are already providing campuses with diversity without additional policy, and as I noted above while if you look you will find past and continuing structural headwinds for Asians in a number of areas, education does not seem to be one of them

    Thus, but liberals' own paradigm at leat, their support for affirmative action is not inconsistent; it is delivering what they want it to.
    ================================
    As for me, I think the two issues I cosigned from Eidde above are as present, if not more so, with respect to class. As such, I would like to see affirmative action moved to more class-based metrics.

    I also think there is a third issue that liberals don't talk about enough - the supposed meritocracy of college admissions sucks, and sucks extra for minorities/the poor. If you want to reward talent and potential, affirmative action isn't just a social justice thing, it also has potential as a long-term driver of economic productivity.

  • Sarcastr0||

    Also, I'd like to point out my appreciation for your last two comments (7:02 and 7:02), Eidde.

    That might be my axe being gored, but your liberal impression is damn hilarious.

  • Eidde||

    Now that we're ideologically Turing testing each other:

    Maybe you could summarize why you think that conservatives (a broad term in this case because it apparently includes Stanley Mosk and Justice William Douglas) oppose the racial preference policies associated with the term "affirmative action."

  • Sarcastr0||

    Going with the moderate GOP arguments, and ignoring the Bell Curve crowd...

    1. The general idea that discrimination is always wrong, and two wrongs don't make a right. As Justice Roberts said, 'the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.'

    2 America functions best when it's a meritocracy. Affirmative action elevates values that are other than meritocratic which will make everything worse in the long term as we hobble our economy searching for virtue.

    3. Admissions is a zero-sum game. Even when you are dealing with an industry that is governmental, it's still bad for the government to be picking winners and losers. And here the losers are white people, which feeds into...

    4. The sense that this comes from a bad place on the liberal side. Reparations virtue signaling, buying votes, hate/guilt against white folks...not stuff you should base policy on.

  • Eidde||

    And this indicates a bit of common ground from the "moderates" on both sides, since both groups of moderates say they want to see Rev. King's vision of people judged by the content of their character not the color of their skin.

    But there's disagreement on whether certain preconditions have to be met before giving up racial preferences - preconditions like getting rid of the remaining pockets of white privilege (the existence of these pockets being admitted, the size of these pockets, and their relevance of these pockets to government racial preference, being in dispute).

    If in fact there's a yuge white-privilege thumb on the scale, then the racial-preference argument at least makes sense as a way to counterbalance that privilege.

    The problem is that, in considering a case involving specific individuals - say, competing candidates for a position in a given job or university - it's OK to have some degree of racial preference, whether to counterbalance white racism by the particular employer/college, or to address general societal white privilege.

  • Eidde||

    And as to diversity, if by the time you're in college or a job you haven't had major contacts with people of other races, I'm not sure it would help to be at a school or workplace where there's racial preferences against your group, and expect you to get along better with people from the preferred group.

    Far better to start in childhood having equal relations with people of all backgrounds - including political backgrounds by the way - and the more there's a voluntary element to these associations, the more genuine and sincere will be the multiculturalism.

  • Sarcastr0||

    Very much cosign this - the diversity rationale, at least taken alone, essentializes race and ignores everything else. Which is pretty dumb.

    When I was 16 I did a Boy Scout thin in New Mexico and met a bunch of southerners, and it was pretty diverse compared to my black or Asian friends in high school.

  • Eidde||

    Oops,

    "The problem is WHETHER, in considering a case involving specific individuals - say, competing candidates for a position in a given job or university - it's OK to have some degree of racial preference, whether to counterbalance white racism by the particular employer/college, or to address general societal white privilege."

  • Sarcastr0||

    There may be middle ground, but the partisanizing of the issue has calcified it, like so many others. Lots of talking past one another and arguing with strawmen. And becoming strawmen in in reaction to the other side's clearly bad faith strawman arguments. Add in each side benefiting from racial resentment and I don't see this changing at all absent some sweeping judicial opinion.

    But the fact that we can have this kind of back-and-forth shows we are not yet in the land of gun control and immigration.

  • Brett Bellmore||

    What's cynical about it? I married an Asian, my son is Asian-American, and I don't want to see him discriminated against.

    I get to see exactly why Asians are over-represented at colleges and universities despite being subject to discrimination by some of them. My wife started the flash cards at six months, our son was reading at an adult level by the time he hit kindergarten. It's a triumph of culturally driven merit.

  • Eidde||

    Just to be clear, I was playing at being a progressive to see if anyone could tell the difference - aka the Ideological Turing Test.

    I often mention the Asian angle when I criticize racial preferences - since Asians alongside whites are generally in the nonpreferred classes. Then I get blamed for dragging Asians into it when we all know it's about White Privilege.

  • Bored Lawyer||

    Yes, that is the rub. Race is automatically equated with disadvantage. Obama's daughters have parents who, between them, attended four Ivy League schools. Their father had been a professor at one of the nation's top law schools, and their mother a high-powered lawyer in a major firm. They are about as advantaged as anyone could be. Yet their race is a basis to give them advantages that a poor white or Asian person does not have.

    There had been talk some years back of implementing advantage-based affirmative action -- if you come from a poor family or school district, you get some advantages. Too bad that did not develop further.

  • Eidde||

    The problem is that such "disadvantage based policies" will be run by admission offices on fairly arbitrary criteria. Even a nonpartisan genius would have trouble figuring out who's more disadvantaged.

    How many points do you give the poor kid who got hassled by the cops because of his race, versus the kid from a broken home, versus the middle class kid who was abused by his parents, versus the rich kid whose mother just got murdered.

    Even Oprah would have trouble sorting it out.

  • bernard11||

    It wouldn't actually have to be perfect. It's not as if regular college admissions is perfect, and by the way it's not all that merit-based.

    If you want to eliminate advantages for those whose ancestors were slaves, eliminate them for those whose ancestors were hugely wealthy. I don't see Ms. Heriot or most other foes of AA arguing for that, but there is definitely AA for rich, connected, kids. And the unconnected rich at least have all the test prep, private schools, whatever.

    I personally think class-based AA is a good idea. I mean, we have it for the upper classes, why not the lower?

  • Eidde||

    Use point system. Give points for being from a working class family, deduct points if your family is rich, or kulaks, or wreckers.

  • bernard11||

    Not a question of kulaks or the like, but of being consistent in using merit-based standards.

    You might find this interesting.

    And from this we learn:

    In one famous instance, resurfaced this week by Vox and originally put forward in Daniel Golden's 2007 book "The Price of Admission," Jared Kushner's wealthy father pulled every string he could reach to get his son into Harvard: He called two senators to whom he had donated to have them call the Ivy League school on his son's behalf, and he directly pledged a gift of $2.5 million.

    On his own merits, Jared would not have gotten in, since he lacked both top grades and SAT scores: "Margot Krebs, who was director of Frisch's college preparatory program at the time, said, 'Jared was certainly not anywhere near the top of his class,'" Golden recounts.

    So the snark is uncalled for.

  • Eidde||

    Against whom are you arguing? The people who got the dumb legacies into Harvard?

    I'm not on Harvard's admissions committee.

  • bernard11||

    I am saying that those who are deeply concerned about AA because admissions should be merit-based are overlooking, intentionally or not, a much bigger target, and one that is at least as great an affront to merit-based admissions.

    Now, if Harvard has the right to make its admissions decisions in accord with its own interests and policies, with no obligation to follow any particular policy, that's fine. But then don't criticize the AA policies.

  • Eidde||

    I think private institutions should set their own policies, so long as the public isn't forced to subsidize them.

    Let the institutions with preferential policies - of all kinds - compete against institutions more merit-based institutions, and we'll see who prevails.

    Let the rich use *their own* money, not other people's money, to groom their kids for careers and the like.

    The one kind of affirmative action which appeals to me is educational aid for the poor. That is, don't exempt the hardworking, intelligent poor from the rigors of meritocracy, except in giving them that which, as poor people, they stand in need of - money. Provide charter schools, vouchers, scholarships, and the like.

    That's how you do affirmative action for the poor.

  • TwelveInchPianist||

    "Prof. Heriot ... doesn't understand the concept of affirmative action because she described it as "preferential treatment."

    The concept of affirmative action programs is to assist historically disadvantaged minorities to become undisadvantaged."

    Huh. I thought it was to allow universities to enjoy the benefits of a diverse student body.

  • Sarcastr0||

    Haha, I saw that as well.

  • tkamenick||

    I was hoping Sarcastr0 would jump on that low hanging fruit!

  • Sarcastr0||

    Thing is, I find I prefer the low hanging fruit to my right, not to my left.

    It's gotta be pretty low for me to bother with my left.

    Like that leftish guy yesterday who said someone might be racist but was defiantly a Nazi. Even my partisan self couldn't leave that one lie.

  • Brett Bellmore||

    They only came up with that because the Supreme court suggested that the "historical" disadvantages were getting to be a little too historical, and at some point would pass their sell by date.

    So they needed an excuse that would never expire.

  • David Nieporent||

    The concept of affirmative action programs is to assist historically disadvantaged minorities to become undisadvantaged.

    Who cares what the concept is? Laws -- contrary to what liberals so often seem to think in these discussions -- are defined by what they actually do, not by the motives of the people behind them. The operation of affirmative action programs is by racial preferences.

  • Bob from Ohio||

    Nixon's supreme court appointments were all disasters except for Reinquist.

    Powell was the most empty suit to sit on the court in my lifetime.

  • Rev. Arthur L. Kirkland||

    Libertarians and liberals consider Rehnquist a loser.

    Conservatives recall him fondly, much as they think of the "good old days" when blacks, women, gays, Hispanics, and other people knew their place in America.

  • captcrisis||

    Lewis Powell was the public face of the Federalist Society. They wouldn't even let him in the door nowadays. Way too liberal.

  • Stephen Lathrop||

    Which tells you far more about the intellectually unmoored character of movement conservatism than it does about the author of the Powell Memo.

  • Beldar||

    I began law school at Texas in September 1977, so I read with keen interest all of the various opinions from both California Supreme Court and the SCOTUS. I recall being discouraged that Justice Mosk's clarion-call opinion didn't stand up, and I was spectacularly unimpressed with Justice Powell's wishy-washy embrace of racial preferences. Forty years later, my views haven't changed.

  • Beldar||

    ... opinions in Bakke, I meant. I wasn't so diligent a law student as to read all their opinions.

  • tkamenick||

    I've found that reading all of a state's highest court's opinions in a term is not that burdensome and actually helpful to see where jurisprudence is going in the state (and learn a few random things that might help you later).

  • Krayt||

    This is also when diversity-as-value was born, as affirmative action started to die in the courts.

    Affirmative action was at least honest in its stated goals. Nowadays college students are expected to see the wondrous beauty of the emperor's new diversity clothes, and write sonnets about it, to provide meme cover.

  • Beldar||

    Powell was a past president of the American Bar Association before it transformed itself from a trade regulation organization to a political advocacy organization. He was a conservative Democrat, a senior partner in the Commonwealth of Virginia's most prominent law firm, and a school board and Chamber of Commerce-type civic leader, from an era when there were many such men in both political parties. He was certainly never a movement conservative and never could have been mistaken for a Goldwater Republican. You're surely right that he wouldn't be much welcome, nor very comfortable, at a modern Federalist Society meeting. But it started in 1982, and by then, regardless of any memos he may have written while in private practice, he was already widely distrusted among movement conservatives based on his votes in Bakke and a handful of other cases.

  • Eidde||

    He would have been a great circuit or state supreme court judge, but he got Peter Principled up to the Supreme Court when the times called for fairly bold leadership to uphold justice and the rule of law.

  • M.L.||

    If lefties want so badly to have policies that discriminate on the basis of race, maybe they'll just have to repeal/amend the 14th amendment.

  • Sarcastr0||

    You realize you're ignoring 40 years of jurisprudence?

  • Brett Bellmore||

    That's fine, Brown ignored twice as many ears of jurisprudence.

    Bad jurisprudence SHOULD be ignored.

  • Sarcastr0||

    Brown acknowledged and discarded. And that was SCOTUS.

    ML ignored and provided liberals options based on his pretend reality. And he ain't SCOTUS.

  • Rev. Arthur L. Kirkland||

    If right-wing bigots want to have policies that promote their preferences, maybe they'll just have to move to another country, because American seems destined to continue to progress despite the aspirations and efforts of backward Republicans, authoritarian conservatives, and intolerant faux conservatives.

  • Paul McKaskle||

    Justice Mosk also spoke at the University of San Francisco Law School graduation that year. There were student protests before the ceremony and some students sent him a letter asking him to not appear. A number of students walked out when he approached the podium. However the rest of the graduates (a very large majority) gave him a standing ovation when he reached the podium as well as at the conclusion of his speech.

  • ReaderY||

    I don't claim familiarity with Justice Powell's biography. Perhaps he changed with the society around him between 1961 and 1978.

    There is, however, another possibility. One is reminded of the difference of views between Treasury Secretary Chase and Justice Chase regarding greenbacks. Treasury Secretary Chase was the architect of the program. Justice Chase found it unconstitutional.

    Was Mr. Chase showing bad character by doing so? Was he a hypocrite? Or is it possible that the perspective of a cabinet secretary, or school board chair, might legitimately be different from that of Supreme Court Justice?

    It's understandable that tenured law professors, like Supreme Court Justices, would tend to take the opinion people should never change their views. However, the idea that people's views ought to be formed whole-cloth from within, and not in any way a response to their environment or to external evidence, requires not just a faith that what is inside is the source of all right knowledge and reason, but also a certain insulation from the outside and the empirical - both its potential for being a source of bias and corruption, and it's potential for being a source of evidence and truth.

    To the empiricist, changing ones views as more evidence develops is not bad character at all.

  • Michael Ejercito||

    What compelling interest is furthered by race-based affirmative action that is not also furthered by poverty-based affirmative action?

  • Sarcastr0||

    I prefer poverty-based myself, but it's a sociological truism at this point that race isn't a separate and unique challenge in addition to poverty.

  • Stephen Lathrop||

    What compelling interest is furthered by race-based affirmative action that is not also furthered by poverty-based affirmative action?

    This will require multiple segments:

    Sarcastro's mistaken remark about sociological truism aside, it isn't even close. To add a little more specificity to it, take as proxies urban black poverty, vs. rural- or small-town white poverty, and throw in also some broken-home suburban poverty on the white side (broken homes being almost a norm among poor blacks).

    Today's black college applicant will be descended from ancestors who were either forbidden by law to read, or denied education by custom. Not so with the white kids, whose literacy heritage will mostly extend back before the Civil War, and in many instances for centuries. Literacy is an advantage which gathers cultural riches over generations, and for generations whites, including poor whites, have been equipped to build that advantage cumulatively. Less so for poor blacks.

    Not a few poor white kids will come from families which fell from better circumstances, because of happenstance, misfortune, divorce, etc. Very little of that on the black side, where better circumstances were always hoped for in the future, but rarely part of any family's past. The intellectual and cultural heritage of better times can be passed on, even by poor white parents, if they have it. Black parents, not so much, because they don't have it.

  • Stephen Lathrop||

    (continued)

    Black culture, rooted as history forced it to be, in resistance to whites, provides an awkward heritage for modern inter-racial cooperation and advancement. That culture of resistance remains alive. There is an unlearning task there for poor blacks which poor whites need not trouble themselves with. Complicating that task is the advantage whites enjoy in setting the norms to which everyone, blacks included, must conform—as for instance with the use of standard English vs. African American vernacular.

    The legacy (and toll) of social disorganization, chaos, and violence with which urban black culture must cope today, and for many decades past, has only rarely, briefly, and to a lesser degree, been seen in white history in America. As a result, cultural wounds inflicted by that heritage are far commoner among poor blacks than among poor whites.

    Even today, with out-of-wedlock births among poor whites more common than they were several decades ago, blacks suffer more by that measure.

    Note that these historical factors I mention will, in the case of poor blacks, be worn as stigmata, because of skin color. Correct minimally the material circumstances of poor whites—by giving them financial aid at college, for instance—and that impediment will persist in fewer cases, because bystanders won't as readily infer it from their appearance.

  • Stephen Lathrop||

    (continued)

    To the extent that mobility out of poverty is a possibility, it will be more broadly possible for poor whites than for poor blacks. There will simply be a greater statistical chance for an ambitious white youth to connect through an established sociological network to people better fixed and better able to help than there will be for most similar black youths. In this nation, sociological networks continue to show marked racial characteristics.

    I suggest that is already an imposing list, without yet mentioning: overt racism; crypto-racism; latent racism of which the racists themselves remain unaware; law enforcement discrimination; and voter discrimination, among other potent stack-the-deck factors. All hurt blacks, not whites.

    Hope that makes a start toward answering your question. Just by looking at factors from that list, anyone ought to be able to pick out some which affirmative action for blacks could notably improve. And indeed, that has happened to a remarkable degree during my lifetime (born 1946), which shows to me, at least, that affirmative action can work, has worked, and ought to be allowed to continue to work.

    That said, the entire affirmative action enterprise has been badly managed. That has stirred justifiable resentment. The affirmative action notion has been too much broadened (far too much broadened), shifted from, "affirmative action" to, "diversity," and lots of other failings.

  • Stephen Lathrop||

    (continued)

    Perhaps worst of all, policy has indeed tended to target for sacrifice low status white males, while bypassing better connected white people of privilege. Those always seem to possess rarefied skills and talents to which affirmative action strictures mysteriously don't apply. On that basis, when a professorship is at stake, we hear repeatedly of the need among blacks to remedy a "talent shortage," a term which never comes up when the fire department is hiring.

    Also, there should have been score-keeping, so that someone sacrificing a place or an opportunity to another—who has indeed had lesser privilege, and needs the help—could have been credited with that, and re-privileged himself, not potentially targeted repeatedly, as if the initial sacrifice had never occurred. And there should have been thanks and recognition for sacrifice. Instead, those most likely to suffer bad effects from what has indeed been a radical social experiment have also been targeted too often with vituperation. The nation is paying a steep price for that.

  • Stephen Lathrop||

    (conclusion)

    I write as a committed supporter of affirmative action, but one who would reform it if he could. It is a consolation to me to see that sacrifices I take to have been real, painful, and mostly arbitrarily inflicted, have nevertheless served hugely to improve the lot of black people during my lifetime. I number myself among those who have paid a personal price for those gains. I take the improvement as my compensation, and draw satisfaction from it, even while wishing the cost could have been less.

  • WJack||

    It seems that, at the very least, the guilt feelings of several victims of progressive educators have been alleviated by affirmative action . . . if remarks here are any indication.

  • Sarcastr0||

    Ain't no telepathy like partisan telepathy!

    Guilt feelings!

  • jph12||

    How many times have you accused Gail Heriot of crocodile tears or making bad-faith arguments during her short tenure here? You've even done it in this very thread.

  • Sarcastr0||

    First, doesn't make the comment I'm replying to any less dumb.

    Second, I've been careful about that, criticizing specific content and stepping back from speculating about her sincerity.

    Third, this is nothing like what you accuse me of, being a blanket statement about an entire ideology.

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