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Affirmative Action

Rights and Wrongs of Replacing Traditional Affirmative Action with Preferences for Descendants of Slaves

This approach would avoid many of the flaws of traditional racial preferences. But it has some downsides of its own.

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The Supreme Court recently decided to hear two cases challenging racial preferences in college admissions. While we cannot know for sure, it seems highly likely that the conservative majority on the Supreme Court will take this opportunity to either strike down or severely curtail the dubious "diversity" rationale that it previously used to justify such preferences.

This possibility has stimulated renewed interest in possible alternatives to the use of racial preferences. One possible option is to replace them with preferences for descendants of American slaves. After I published an article in the Boston Globe criticizing the diversity rationale, a reporter for a Boston NPR station contacted me to ask about this alternative. Co-blogger David Bernstein also highlighted this option in a recent blog post, and in his excellent new book Classified: The Untold Story of Racial Classification in America. Georgetown University has already adopted a small-scale version of this policy, by granting admissions preferences to the descendants of slaves owned and sold by the school in the 19th century. This post expands on the answer I gave the reporter.

In my view, replacing race-based affirmative action with preferences for American descendants of slaves ("ADOS," as David Bernstein refers to them) would be a significant improvement over status quo policies. But this approach would also have crucial downsides.

Depending on how it is structured, this policy might well avoid many of the flaws of traditional race-based affirmative action. Most obviously, it would not require the use of racial classifications. This avoids the well-known moral pitfalls of race discrimination.

It would also  likely avoid the legal problems, as well. Unlike race discrimination, preferences based on ADOS status are not presumptively unconstitutional. They probably would only be subject to minimal "rational basis" scrutiny under current Supreme Court precedent, which they would likely easily pass. Preferences for descendants of slaves also would not violate Title VI of the Civil Rights Act of 1964, which bars discrimination "on the ground of race, color, or national origin" in any program receiving federal funds.

In addition, limiting admissions preferences to descendants of slaves would refocus affirmative action on its original purpose of compensating groups that have been victims of massive historic injustices, a much more compelling justification than the badly flawed "diversity" theory. While slavery and the segregation that followed it are far from the only racial injustices in American history, they are by far the biggest. And similar preferences could potentially be extended to descendants of victims of other massive historical wrongs, such as the forcible displacement of many Native Americans from their lands.

But, despite its attractions,  giving preferences to descendants of slaves raises several difficult problems of its own.

First, how would we verify whether a given applicant qualifies as a member of the relevant group? If we rely on self-identification, there will be obvious incentives for fraud or deception. But having university officials investigate applicants' ancestry or demand verification thereof also creates problems. In many cases, there might not be reliable records available, going all the way back to the days of slavery. Conducting investigations into the ancestry of applicants is also likely to be costly and intrusive.

Second, there is the closely related issue of how to classify the large number of people of mixed ancestry. Millions of Americans who look "white" and are perceived as such by society have slaves or former slaves in their family trees. If everyone with such ancestry is allowed to qualify for ADOS preferences, it would mean extending it to a large number of applicants whose claim to be victims of racial injustice is, at best, highly tenuous.

On the other hand, if only sufficiently "black" descendants of slaves qualify as true descendants of slaves, then we are right back to using racial classifications. Doing so would bring back the very problem the ADOS strategy is intended to solve. In addition, any attempt to determine who is "black enough" to qualify as a "real" descendant of slaves is all too likely to degenerate into subjectivity and bias. The history of such attempts at racial classification is, to put it mildly, not an encouraging one.

Finally, there are also difficult moral and philosophical issues with assuming that anyone who is a descendant of slaves (even if they are "authentically" black) is automatically a victim of injustice himself or herself. Consider an example from my own family history. I am a Russian Jew and descendant of people who suffered from pogroms, the Holocaust, and a variety of other czarist, Nazi, and Soviet injustices. Does that make me a victim of anti-Semitism, myself, thereby worthy of compensation of some kind (perhaps from the Russian or German governments)? Perhaps. But the issue is highly contestable.

If not for the many injustices perpetrated by various Russian and German regimes, I almost certainly would not have even been born. My grandmother lost nearly all of her family, including her first husband, in World War II; many of them perished in the brutal 900 day siege of Leningrad. If not for these horrific events - the responsibility of Hitler's regime, with an assist from Joseph Stalin and the Nazi-Soviet Pact - she likely would never have married my grandfather (whom she met after the war), nor given birth to my father. Indeed, even a slightly different chain of events from that which actually happened would have prevented me from ever existing. In a perverse, but real, sense I am at least as much a beneficiary of Hitler and Stalin's injustices as I am a victim.

What is true for me is also true for nearly everyone alive today. If not for our horrible history of injustice, hardly any of us would be alive today - whether we are descendants of slaves, descendants of slaveowners, or descendants of neither.

This consideration is irrelevant to policies that seek to compensate people who are direct victims of unjust policies, as opposed to descendants of such victims. For example, it does not weaken the rationale for compensation payments to actual Holocaust survivors, or the belated and inadequate compensation paid to Japanese-Americans forcibly detained in camps during World War II. But it is a serious issue when we are considering compensation for the descendants of victims of historic wrongs, on the ground that they have been negatively impacted by the long-term effects of those injustices.

Even aside from the possibility that, but for the history of injustice, they wouldn't exist in the first place, it is often difficult to determine where a given individual would be if not for the wrongs suffered by their ancestors. Some descendants of slaves - like some descendants of Holocaust survivors, Japanese-American internees, and other victims of great historic wrongs - are nonetheless affluent and otherwise well-off today. I myself am a relatively wealthy law professor.

Perhaps all these people would be richer and happier still, if not for the awful history endured by their ancestors. But it's very difficult to tell one way or the other.

This last problem could perhaps be addressed by limiting compensatory preferences to relatively poor and disadvantaged members of the relevant group. But it will not be easy to figure out where to draw the line, and not clear that any institution can be trusted to do so objectively.

In sum, replacing traditional affirmative action with preferences limited to descendants of slaves has some important advantages. But any such program would also have to grapple with grave difficulties of its own.

Despite these reservations, I would not legally forbid private universities from trying this. Public ones are, I think, a closer call, though unlike racial preferences, these programs would not be presumptively unconstitutional. Government institutions, I believe, have stronger nondiscrimination obligations than private ones, and thus should have stronger presumptions against any kind of discrimination based on ancestry, which too often cause grave harm, even if not based on race. Indeed, in most situations, discrimination based on parentage and place of birth is unjust for many of the same reasons as racial discrimination is. And even if such policies are legal and not inherently unjust, they should only be enacted if we can come up with at least reasonably good solutions for the problems described above.

It is perhaps worth noting that my concerns about preferences based on ancestry also apply to the "legacy preferences" still used by many selective universities. Unlike ADOS preferences, they cannot even be defended on the grounds that they help remedy historic wrongs. Schools should, therefore, abolish them, as my own undergraduate alma mater, Amherst College recently did.

NEXT: SSRN Removes Academic Paper Due to Defamation Claim

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  1. Racial preferences will most likely benefit the superior performers, the New Koreans, pitch black superior beings who immigrated from Africa recently. It is not their skins that matter. They come from intact patriarchal families. They are Christians. They love America. They voted for Trump. That is why they are superior performers.

    1. Hey lawyer dipshit. How about the descendants of the Semites who were enslaved in Egypt? How about the captured blondes who were made sex slaves and taken to the Middle East?

      How about the Irish indentured servants? Their condition was indistinguishable from slavery.

      I have a proposal for Ilya. STFU, you are moron.

      1. How about a Harvard scholarship to a slave of today? No shortage. I like those blondes in Russia.

        https://www.therichest.com/poorest-list/the-10-most-enslaved-nations/

        1. The American lawyer is just slick. He enslaves through regulation.

          Scholarships should go the offspring of the victims of quack lawyer regulation.

          1. If the goal is to remedy racial disparities, this is an idiotic plan. The cause of all disparities is not past slavery. It is the current bastardy rate. If you want to end disparities, end the attack on the black family by the vile feminist lawyers. Round them up, kill them. Get out of the way of the rebounding black family, and of the performances of the offspring.

              1. David,
                Take a tranquilizer.

                1. I would think an anti-psychotic would be more helpful.

                  1. Stale line from the KGB Gandbook you found in the trash.

                2. You fools. No amount of money could buy entertainment like this. And now you want to sedate the kooky guy

    2. Sunk cost...unless the person(s) were still alive, there should be no preferences for any group. For almost 50 years we have had federal law that said govts can disciminate or pass laws forcing people to. I think that is enough.

      As for the "what about"..well my ancestors were forced to leave southern Italy after the idiotic "Italian Unification" to create a nation state which should never have been one (see today how Italy is so dysfunctional). What did the Pedmonts do to my people? Perhaps not on the same scale as "what the czar did" to the writer here but honestly go back far enough and your "tribe" was discriminated against.

  2. Is it "American descendants of slaves" or "Descendants of American slaves?"

    Both formulations are used in this post but they're completely different. Every American is likely a descendent of slaves, because slavery was an incredibly common historical condition and so therefore nearly everybody is a slave descendent. Obviously we can't give "everybody" a preference so that's a non-starter. Which leaves descendants of American slaves, but there's no obvious reason why the nationality of your slave ancestor should make a difference.

    1. " Which leaves descendants of American slaves, but there's no obvious reason why the nationality of your slave ancestor should make a difference."

      Except "descendants of American slaves is in no way about the nationality of the ancestor, rather the question is: Was the ancestor held in a condition of slavery in the United States of America?

      1. From a policy and justice perspective, this is incoherent. It's a windfall based on the mere happenstance of where your slave ancestors happened to be geographically located. I understand why the beneficiaries of such an arbitrary regime would be in favor of it, but there's no reason for anybody else to play ball.

        "You have a slave ancestor who was in the Spanish Empire, so you get nothing. You have a slave ancestor who was in the United States of America, so you get fabulous prizes."

        1. Going far enough back I bet most people are descendents of slaves somewhere. Slavery, and certainly by broad definitions, was common throughout the world.

          Foe example I am sure some of my white descendents that came in colonial times could be considered slaves because of the way they paid for the voyage by becoming indentured.

        2. Why exactly should US residents / taxpayers compensate descendants of slaves from the Spanish Empire? Shouldn't they seek compensation from Spain?

          1. In theory sure, if there's some sort of global accord whereby everybody can collect from the countries where their slave ancestors happened to reside, I'd be okay with the USA joining it. The USA will pay out a relative pittance, Italy and Mongolia are going to be broke, and everybody will be doing genealogical research to chase down who they're supposed to be irate with. But absent such a global accord, there's really no reason for the USA to do such a thing unilaterally. Everybody has slave ancestors, so I suggest everybody get over it.

            1. You might think of it as the US seeing a good example, potentially as a way to pressure other countries to follow suit.

              But the observations in the blog post about the difficulty of establishing that some specific ancestor was enslaved becomes harder the farther back in time one looks, so there's a practical limit for applying this, to historically recent slavery.

              1. How is it a good example to punish the people of today for wrongs over 150 years old in many cases not even committed by your direct ancestors? This marxist grievance shit needs to end.

                1. We typically do not treat government taxation, government spending, or having a college application denied as punishment.

                  I am not convinced that these forms of discrimination are justified, but they are not "punishment" as we (Americans) tend to use the word.

                  1. "We typically do not treat government taxation, government spending, or having a college application denied as punishment."

                    Maybe it would be more realistic if we did. Often the only difference between them and the things we do call "punishments" is that in the case of "punishments" you were given a chance to avoid them by proving yourself innocent of some crime.

                    While if we don't call them "punishments", you lose that chance, because we don't care if you're innocent!

                    In this case, reparations are, as conventionally understood, payments to somebody wronged, by the party guilty of the wrong, in compensation. They're about as "punishment" as it gets.

                    Only there's little pretense of directing the 'reparations' to the wronged parties, and none at all of extracting them from the parties guilty of the wrong.

      2. “Was the ancestor held in a condition of slavery in the United States of America?”

        Which opens spots up for the majority of Liberians

    2. My first thought here...

      The "Descendants of American slaves" at this point likely includes a large portion of the population of Liberia... Maybe they should get all the "Reparations" and we can just put a pin in this idea.

      1. None of the definitions work. They are all going to have some white person categorized as preferred and a black person as not preferred.

        I think it is sad that people seeing the preferences do something they didn't want would be more likely to kill it than the gross injustice of rewarding one group and punishing another based on their ancestors.

        I do t think it is obviously constitutional either. Due process principles are violated when someone is punished (lower preference in a zero sum action) based on the actions of their ancestor. For example, the government cannot punish the son of a murderer.

        I don't even think such preference would be consistent with at least the spirit of the nobility clause. Nobility is an inherited preference under the law. Some of the framers didn't like the idea of the preference being inherited and others didn't like the idea of anyone getting legal preference.

        Similarly, public institutions should not give legacy preferences to the children of alumni. I think there is even a good argument against sibling priority for public schools including charter schools.

        1. Sibling preference at least has the practical consequence of allowing parents to deal with one school at a time.

          1. Well, it also simplifies their bus routing, but my son is in a charter school, and that is indeed the stated rationale.

            1. We don't arrest people because they were between the donut shop and the police station. Equal treatment of individuals should not be trampled for the convenience of the government.

              If convenience of busing was important, charter schools should have a geographic lottery instead of a student lottery.

    3. "Obviously we can't give "everybody" a preference so that's a non-starter." Or maybe that has been the answer to this "problem" all along. Every individual person has innumerable inherent attributes that provide them with various advantages and disadvantages in life. Trying to reduce those to any single variable is foolish and actively harmful.

  3. Only giving preference to American Slavery descendants would seem to be predicated on the idea that once slavery was abolished, black Americans were treated fairly and equally. Since this is obviously false, I'm not sure why the line for preferential treatment would be drawn here.

    1. If you were to limit it to the descendants of those who were subject to Jim Crow, you would have a more administrable program because you wouldn't have to look as far back.

      Drawing a line is arbitrary. It is perfectly possible for a person who immigrated to the United States to experience a race-based injustice. But, it is also perfectly possible for them to not experience such a thing.

      I think if we were to limit it to the descendants of Jim Crow, we could at least be more or less certain that an actual injustice occurred.

      Then again, I think this is all question-begging. What about injustices with intergenerational impacts that have a source other than slavery and race?

      1. In the above comment, I should have said "a person who RECENTLY immigrated"

        1. It's worse than that! Don't forget the millions of Liberians, descended from American slaves - who, of course, took the opportunity to enslave the indigenous black populations and rule as a minority until the 1980s.

          As descendants of American slaves, do they get any special benefits or reparations? What about the descendants of slaves of descendants of American slaves?

        2. I think all of that is right. It's both completely irrational and totally unworkable. Other than that, though...

      2. There was also the Asian equivalent of Jim Crow - denial of citizenship and of land ownership, even actual school segregation. (I'll leave out the Japanese-American internment because at least they paid compensation for that.)

        Oh, and I don't think they've paid compensation for Mr. Yunioshi yet.

        https://en.wikipedia.org/wiki/Breakfast_at_Tiffany%27s_(film)#Portrayal_of_Mr._Yunioshi_and_later_yellowface_controversy

    2. Considering white people were also treated unfairly by Jim Crow Democrat governments ... you are opening a very long list.

      A great equalizer ...

  4. At some point, the continued efforts to divide the country based on race needs to end. Its been 150+ years since there were any slaves in the US, 6 + generations. Tremendous progress has been made in race relations over the last 50 + years. Dividing country based on race never ends well.

    1. As Prof. Somin pointed out, singling out for preference the descendants of American slavery isn't a process based on race.

      1. singling out for preference the descendants of American slavery isn't a process based on race.

        Which means it will never happen in the real world, much like preference systems based on actual metrics of hardship such as socioeconomic status rather than race.

        Which makes it naught more than mental masturbation.

        1. Right. Regardless of the theoretical pretexts advanced, the reality here is that what we're discussing is just taking white people's money to give to black people, and nothing else.

          And the more fundamental reality is that the discussions are not intended to actually lead to payments. They're intended to lead to the expectation of payments, which will be frustrated, leading to feelings of entitlement and having been wronged.

          Because one of our political parties has become existentially dependent on racially polarized voting, and NEEDS race relations to be bad to survive.

          1. And Asian people's money, and Jewish people's money, and Latin American peoples money, and ...

          2. Well, I'm not defending the idea, just pointing out that one of the main ideas of the OP is that you avoid the question of race, but instead base it on being descended from slaves. And as far as I know, we aren't talking about reparations, but rather preferences for college admissions. So I'm not sure how we're discussing taking white people's money to give to black people.

          3. One political party? I think you mean both.

      2. So, since my DNA contains a less than zero amount of West African ancestry ... I'm "golden?"

        Dumb racist logic is no logic at all...

      3. Alpheus W Drinkwater
        February.12.2022 at 6:45 pm
        Flag Comment Mute User
        "As Prof. Somin pointed out, singling out for preference the descendants of American slavery isn't a process based on race."

        Alpheus Drink the Koolade

        Its about race, you you know full well that it is about race.

        1. Not so far as the EPC is concerned.

          I think this is a dumb idea (it assumes the only reason for AA is compensatory, for instance) but it is a decent formalist argument.

          1. Kinda like how the SC got around that problem in Grutter

            They just called the quota - "diversity" and suddenly the quota was okay

            In this case, they will just call it "slave descendants , instead of calling it about race, and suddenly race is okay

            1. You're making a purely functionalist argument, which tends to be dodgy (this is my issue with Kennedy's opinions), but even there you're wrong - the OP argues AA should be about compensation past wrongs that have echoed through generations. This aligns with that.

              I think the OP's idea about what AA is about is incorrect - that's where I'd attack it. But if you believe that axiom, the argument is solid both formally and functionally.

              So I agree with you, I just think your argument is in the wrong place.

              1. See lee Moore's comment below

                Dress it up how you want, call it what you want -

                It is still only about race

          2. it is a decent formalist argument

            Nah, it's a neon-lit pretext . Somin actually slips up and says the quiet part out loud :

            If everyone with such ancestry is allowed to qualify for ADOS preferences, it would mean extending it to a large number of applicants whose claim to be victims of racial injustice is, at best, highly tenuous.

            Demonstrating that the real target is "racial injustice" not "great great great great great great grandpa was a slave."

        2. "Alpheus Drink the Koolade"

          I like Kool-Aid. But I'm diabetic and they don't make diet. Thanks for the offer, though.

  5. The idea that people who are descendants of slaves but "pass as white" should be denied compensation is confused. If there is a rationale for compensating the descendants of slaves, it is because in some sense they lost their inheritance. (Of course, many people of all ancestories do not receive inheritances, so this is hardly a unique "injustice.") This rationale is as applicable to those who "pass as white" as anyone else.

    If we wanted to compensate people for racial discrimination they suffer TODAY, then it would make sense to limit such programs based on race. But note, we already have a mechanisms in place for people who are victims of race discrimination AND can prove it. Of course, that prove it part is really hard. Plenty of wrongs occur in the world that cannot be formally proven in court. That is very unfortunate, whether the wrong is related to race or not.

    In my view, the inheritance rationale does not make sense. It is true that many descendants of slaves are denied an inheritance BECAUSE of slavery and its impacts. But many other people also do not receive an inheritance. If not getting an inheritance is a problem, shouldn't it be a problem for everyone who doesn't receive one through no fault of their own?

    Clearly, if affirmative action of any sort is employed, then it should be limited based on other disadvantages. It doesn't makes sense to give the children of highly affluent and educated people advantages not enjoyed by less privileged people.

    What problem are we really trying to solve here? In my view, we are trying to solve the problem of people not being able to have a fair chance to reach their full potential due to socioeconomic disadvantages that arose before they were born. That disadvantages could have arisen due to race, but what if they arose for some other reason?

    I certainly think limiting affirmative action to the descendants of slaves makes much more sense than race-based affirmative action. But I think it has some of the same problems as race-based affirmative action. Overall, we should try to increase opportunities for young people who are disadvantaged without limiting such help to those who are disadvantaged based on race versus some other reason.

    1. Here's a simple methodology for reparations, and then we can be done with it all.

      Take the current median income of a descendant of slavery's country of origin (under the assumption they and their ancestors would've been born and lived there instead of the U.S. because of slavery), multiply by the median life-span (now you have lifetime median earnings), subtract the current U.S. median expected earnings calculated the same way, and then pay out the result to every descendant of slavery currently in the U.S.

      Heck, I'd even be willing to fund all the reparations payments personally, i.e. out of my own pocket!

      1. The old "ACK-shully, slavery was a good thing if you really think about it!" argument. That always goes over well.

        1. Ah, the old, I don't have an argument, so I'm going to misrepresent the person I'm responding to response.

          That always goes over well...

  6. The natives (i.e. indigenous, Indians) were treated much worse than slaves. Shouldn't they be first in line for special treatment or reparations?

    Suitable reparation would be to give them North/Central/South America back, expelling all non-natives.

    1. Define "native".

      If you define it as anyone born here, you have eliminated everybody but recent immigrants.

      If you define it as anyone whose descendants were immigrants, you have to set a time limit. There weren't any natives prior to 20,000 years ago (or some other limit of your choice).

      But if you punish natives whose ancestors immigrated too recently, you are punishing people who had no choice in the matter. You may as well punish dreamers, whose parents immigrated illegally when their children were six months old. Where are you going to send the 95 year old whose ancestors immigrated, say, 200 years ago?

      1. The people we call "American Indians" weren't the first humans in the Americas - they immigrated in and killed off the previous peoples thousands of years before.
        But that's ok! There's growing evidence that those peoples were not the first humans either, but instead they immigrated and killed of the previous residents as well. So that makes it all good.

        1. Can you point to some academic material on that? https://time.com/3964634/native-american-origin-theory/ describes a single-wave theory. Some articles from 2012 describe a three-wave theory, but the second and third contribute a smaller amount of DNA (SNPs in particular) in geographically limited areas, with those waves mixing in rather than replacing.

          1. Mixing rather than genocide is probably correct; my statement was more hyperbole than straight accuracy. I am only a casual reader on the topic, so I have no academic references except by way of new articles or Wikis.

            What I was referring to was the recent (last several decades) challenges to the Clovis peoples being the oldest in the Americas. They've already pushed back the early colonizations almost 10,000 years from the Clovis period, using better dating techniques on discovered artifacts.
            On top of that, there's growing evidence of what Wikipedia is calling "long chronology theory" which has large human population in the Bering area some 40,000 years ago, with smaller groups heading into North America until the later Clovis period migrations 15,000 to 20,000 years ago. There have been recent discoveries of sites in Canada and South America supposedly dating back further that support this.

            Unfortunately, from what I understand, trying to call them "different peoples" is difficult, because DNA doesn't survive that long. We have few (only one?) samples from the Clovis period, and none from earlier discoveries. So they rely more on "cultural" and technological differences to identify the groups. If I understand it correctly, Clovis peoples had a distinct way of working stone, so a group that did it differently is assumed to be a different, unrelated, people.

            Note: I had to look up specific year ranges, and used Wikipedia as the source for those.

            1. Readable DNA can survive for many thousands of years. Most recently paleo-geneticists have been finding it in tooth enamel. Don't forget that Denisovan DNA was isolated and identified from a few bone scraps more than a hundred thousand years ago. Modern Indian tribes in America and Canada have claimed rights to all ancestral bones, making DNA analysis difficult if not impossible.

  7. A quick and dirty way to create a ADOS class is—every Black American that had a Black citizen ancestor in 1960…that would be a slightly over inclusive group. So thanks to racism we didn’t have a lot of Black immigrants outside of a few West Indians like Colin Powell and Kamala’s father.

    Another way to make these preferences even less consequential than they would be would be to increase the endowments of HBCUs and give them endowment specifically for tuition for ADOS. So Xavier in NO has the best record of any college for getting Blacks STEM degrees and so if you just got Bezos and Dell to give them $100 million a piece you would get more Black STEM degree holders with no harm to whites and Asians.

    1. Define "Black American"

      Are Meagan Markle's kids "Black Americans"? Why or why not?

      1. I would have to check for sure, but they are probably African Dual Citizens. They were born when Andrew was a royal- were they awarded any titles before he was stripped of his?

        1. Harry. Andrew is Harry's perv uncle.

      2. How many ancestors do they have to have to be considered “royalty”?? Her maternal grandparents are descendants of American slaves and and Harry’s grandmother is Queen of England. So every one of one’s grandparents doesn’t have to be royalty to be a royal and the same thing should apply to ADOS.

  8. How about just treating people the same? Equal opportunity, not equal outcome.

    And for the record, I don't own any slaves, and they don't pick cotton for free,

    1. That’s stupid, why don’t you just go back to England?? Your ancestors were most likely complainers that weren’t happy with their lot in life and so they decided to make a change.

      We are free to make changes to our society based on aspects of our society that we believe are suboptimal. The reality is affirmative action based on ADOS would be nearly inconsequential to the larger society—that’s why it was abandoned in order to do something more consequential that has harmed our society.

      1. Oh ho, an optimist! "The reality is affirmative action based on ADOS would be nearly inconsequential to the larger society".

        The reality is that it IS unfair, right now, for me to be taxed for having ancestors who fought to end slavery.

        The reality is that every government program expands without limit, and your current "nearly inconsequential" redistribution would quickly expand to include even the most tenuous connection to slavery.

        1. I have ancestors who fought on both sides- and ancestral relatives who fired artillery at my union 3rd and 4th great-grandfather at the Second Battle of Drewrey's Bluff. Do they cancel each other out? And two sets of my 4 sets of great-grandparents weren't in the USA until after 1880. Does that reduce my potential taxation for this scheme by 50%?

          1. And all my ancestors immigrated to this country well after the Civil war, and I'm the first to them to live in a state where slavery was at one time legal.

        2. Meh, Texans are penalized with respect to college admissions simply because they live in the suburbs—life isn’t fair.

        3. I have to agree. My family tree is rather spotty that far back, but my ancestors are more recent immigrants or poor farmers that far back. I don't think any of them actually owned a slave in America.

      2. As soon as you kill yourself for descending from racist, colonialist, invading shitlords I will listen to you.

  9. Every group has been horribly mistreated. Nobody knows or cares how the entire cham civilization was wiped from the planet by the vietnamese at around the same time as the civil war. The Gauls were not just oppressed but erased as a distinctive people. Then you have all the countless people obliterated by the mongols, timurads etc. What about the arguably more brutal more recent eastern slavery which was largely ended by western intervention?

    How can you claim these matter less because (some) of them happened earlier with the butterfly effect? If it's true they matter less because of time why not treat everyone equally and just wait out the legacy of American slavery so it in your own system matters less as well?

    Why should victims get more reparations then others?

  10. Ultimately efforts like this run into an even more fundamental problem.

    It is completely impossible to provide compensation for a generations old injustice without inflicting a new injustice on someone else.

    1. Matthew,
      I think that your observation gets to the heart of the ethical question.

  11. Professor,

    What would you say to compensation if it was on the theory that it goes to the true victim, the ancestor, but ends up in the current hands by following the inheritance chain. Basically analogous to the idea that the ancestors estate is getting the compensation and it is distrubuted accordingly.

    1. Were compensation granted only to ancestors and scaled accordingly, few likely would be happy with the resultant per capita recovery at the end of the inheritance chain.

      1. Even if we compensate for inflation and interest?

        1. Isn't applying both interest and inflation double-counting?

          But I think the answer is probably yes: Assuming the average American family sizes over the relevant period (because I don't have a sense of what other number to use), there are a lot of descendants per enslaved ancestor. More notably, GDP has grown significantly faster than inflation, so the same inflation-adjusted amount does not go as far. https://measuringworth.com/slavery.php gives three different ways of evaluating the current equivalent cost of a slave in 1850 or 1860, and inflation adjustment (what that page calls "real price", following modern practice for numbers derived from CPI) is the lowest and least accurate. The median cost corresponds to roughly 4% interest, which is considerably higher than the long-term average yield for 1-year Treasury bonds (interest on federal judgments apparently uses a weekly average for this, which seems incorrect for this purpose).

  12. UT-Austin has proactive geographic diversity that harms students from suburban schools…so I don’t know why they can’t have affirmative action based on ADOS.

  13. The other thing is that not all people who descend from American owned slaves are white "passing". It wasn't until a slave rebellion that it became illegal to own white slaves. There is not really a justification for denying the descendants of those slaves compensation in such a scheme.

  14. Rights and Wrongs of Replacing Traditional Affirmative Action with Preferences for "John" and "Jane"

    Rights and Wrongs of Replacing Traditional Affirmative Action with Preferences for Descendants of Left Handers

    Rights and Wrongs of Replacing Traditional Affirmative Action with Preferences for Descendants of Roman and Greek Slaves

    Rights and Wrongs of Replacing Traditional Affirmative Action with Preferences for Descendants of Day Laborers

    Rights and Wrongs of Replacing Traditional Affirmative Action with Preferences for Descendants of Agoraphobes

    Rights and Wrongs of Replacing Traditional Affirmative Action with Preferences for Descendants of Victims of Communism

  15. I find it almost incomprehensible that a man of this one's intellectual stature should even be discussing such blatant nonsense, yet this is where we have landed in the 21st century.

    1. Dick Cheney was admitted to Yale because he graduated from HS in Wyoming—Yale wanted geographic diversity. George W Bush was admitted to Yale because his father and grandfather were Yale men.

      1. Both seemed to have been good investments for God, for Country and for Yale.

      2. And how do you know that Cheney was admitted only because of his Wyoming roots?

        1. I’ve made several comments about UT-Austin being very open about actively promoting geographic diversity which ends up being discriminatory towards students from the Houston/DFW suburbs…apparently Republicans don’t think it’s a big deal because it helps rural Americans.

          1. Didn't answer the question.

    2. We can discuss bad ideas in detail. If nothing else, it's an interesting thought exercise. The practicality alone makes this unworkable.

  16. "Georgetown University has already adopted a small-scale version of this policy, by granting admissions preferences to the descendants of slaves owned and sold by the school in the 19th century."

    And here's another case of a related nature:

    "The construction of Mars Hill College in Madison County [North Carolina] was financed in part by using an enslaved Black man, Joseph Anderson, as collateral for the loan. A contractor seized Joe, and the sheriff jailed him until the school’s trustees paid the debt. Joe was freed after the Civil War. His great-granddaughter, Oralene Anderson Simmons, in 1961 became the first African American student at Mars Hill College and is now a noted civil rights leader and activist in Asheville."

    https://smokymountainnews.com/archives/item/29421-entwined-with-slavery-a-brief-local-history

    I seem to recall reading that it was *because* she was a descendant of Joseph Anderson that she was chosen as the integration pioneer.

    At least in Joseph Anderson's case the sale didn't go through.

    1. But those are exceptional situations which are event-specific...as for a generic "ADOS" policy...whatever the glittering generalities one can utter in defense of such a categorical preference in theory, the actual *practice* would probably be bad.

  17. I have many traceable distant relatives who both descendants of slaves and slaveowners. Including one branch where all the children of the former slaveowner and former slave (but not of that former slaveowner) were all born after 1866. Where would they count in this former slave ancestor hierarchy? At least two of those descendants are doctors today. And in the 1940 census (and on WWII draft cards) some are identified as white, others as black. And a few black on the census, but white on the draft card, which got them a better billet...

    1. Your solution is to take some money from your right pocket and put it into your left pocket

  18. OR...we could just knock this off, ignore "race" (besides just treating people equally, no matter their skin color), and pay more attention to socioeconomic status.

    The more I consider this, the more I think those pushing "race" so hard are using it as an excuse to divide America, foster division and ignore the concerns of the working class.

    1. It's funny how conservatives are so deeply racist that they'd rather embrace Marxism than acknowledge white supremacy as an organizing principle in American law and society.

  19. I'm starting to think that Michael Malice is on the right track when he talks about seizing all the university endowments and using that money to pay reparations.

  20. SCOTUS has long held that the EPC prevents discrimination based on ancestry. That's why you can't discriminate against Hispanics.
    For example

    The executive order in Korematsu applied to people of Japanese ancestry, not people of a certain race.

    Heck, even Dred Scott, the case the 14A was enacted to overturn, only applied to black people who were descendants of people brought to the US for purposes of slavery.

    1. And that makes sense. Does anybody seriously think that southern states could have saved Jim Crow laws by making them apply only to ADOS?

      Can States circumvent Brown by segregating schools based on ADOS status?

    2. Heck, even Dred Scott, the case the 14A was enacted to overturn, only applied to black people who were descendants of people brought to the US for purposes of slavery.

      No.

        1. No. You're being misleading. Dred Scott was based on the premise that there weren't any other blacks in the U.S. other than ADOS.

          1. No. Sanford pled the two facts separately, and the court adopted both in its holding.

            Taney supported his conclusion in part by claiming that no black people had come here voluntarily at the time of the founding, but that was a small part of the opinion.

            1. The Supreme Court has held that tribal membership is not a racial category, even though tribal membership is often based on "blood descent." Rather, it's a "political category" not subject to strict scrutiny. If so, then there is an even better case for ADOS as a political, not racial.

  21. How about affirmative action for victims of cultural marxism and communism? There are some real victims there, many of which are still alive to actually benefit from society making amends for a horror it wrongfully subjected people to at a time.

    1. Yes, Jimmy, you're the real victim.

      1. No but there are plenty of them out there. More so then "slavery" which ended 150 years ago in the United States. Plus communism was a far greater evil. If we cared about "justice" then there is no reason not to do this.

        1. America has never been communist, and cultural Marxism is a meaningless Nazi epithet.

          What plenty of people do you have in mind? Do you want affirmative action for Trump voters?

          1. S_O,
            You really should try to ignore Jimmy's baiting you.

            1. I block plenty; I don't block Jimmy because he's mental bubble gum - fish in a barrel. If fish made occasional veiled death threats

              But if it's detracting from some comment readers, I can take a Jimmy vacay and get my jollies elsewhere.

            2. IOW, I'm blocking him now, for a bit at least.

  22. Do you think Harvard is lying about its diversity goals? If not, why do you think something like this would be appealing at all? Diversity isn't about "righting past wrongs," and descendants-of-slaves isn't a particularly interesting subculture.

    If Harvard loses, they'll figure out proxies for race (that are better than ADOS) in order to maintain student diversity. I'm not that worried. It's just annoying that they'll have to do it on the D.L., since there's value in transparency.

    1. I read one of your links from 2012 about Fisher, in which you doubt UT's sincerity regarding its diversity goals. But your arguments there, as here, seem extraordinarily weak. Essentially, you feel like you would make different diversity choices than UT did. So? That's not enough to discredit their approach.

      You shame UT for using the demographics of Texas as a baseline, whereas you would... what exactly? Strive to equally balance the races? That's silly, especially since another critique of diversity goals that you make in the very same article is their alleged coarseness, treating "Asians" and "Hispanics" as undifferentiated. That's a strawman, arising from the way university statistics are reported. Admissions officers can and do utilize much more granular demographic data. In the case of the large Hispanic population in Texas, I expect they strive for a mix of established families and recent immigrants, different national origins, even residents from different regions of Texas. By using Texas's demographics as a baseline, UT could seek to replicate the diversity that exists within the Texas Hispanic population.

      So I don't get it. UT says they want diversity, that's what they're doing, and it's working. Harvard says they want diversity, that's what they're doing, and it's working. But you think they have some ulterior motive?

    2. If you're not racist, it also makes sense to assume that the set of most-qualified candidates would mirror the demographics of the pool from which they're drawn, notwithstanding systemic disparities in kids' schools, opportunities, and evaluation methods. So an easy way to factor out those disparities and find the most innately qualified candidates would be to mirror the demographic distribution. (This works not just for race but for other dimensions like region, gender, socioeconomic status.)

      This strategy still isn't about making up for historical wrongs, and not even really about justice for the aforementioned disparities. It's just a way to correct for the ability for some people to game the system, intentionally or unintentionally. For example, if a certain category of kids is more likely to boost their SAT scores with test prep, and Harvard / UT doesn't think those inflated scores make them better candidates, then they can adjust those kids' scores down.

      This strategy is orthogonal to diversity as well, it just happens to dovetail with it by providing another reason to shape an incoming class to align with the demographics of the candidate pool.

      1. "If you're not racist, it also makes sense to assume that the set of most-qualified candidates would mirror the demographics of the pool from which they're drawn, notwithstanding systemic disparities in kids' schools, opportunities, and evaluation methods."

        The idea that the qualified applicants are going to mirror population percentages regardless of systematic differences in schooling, educational outcomes, and criminal records, is remarkably silly. I think you're describing a non-racist idiot here, not merely a non-racist. And probably just an idiot, never mind the non-racist part.

        1. Sorry, that's my fault obviously. Or I could blame my editor. Please strike "notwithstanding" and substitute "but for."

          1. That makes more sense, then.

    3. Do you think Harvard is lying about its diversity goals?

      To put it bluntly, yes.

      The only reason "diversity" has become the mantra is because the courts decided that the only lawful rationale for racial preferences that doesn't violate the CRA — other than remediation for actual discrimination — is diversity in higher education.

      1. What is the ulterior motive? Why?

        1. Well, until recently the purpose of an institution like Harvard was, as the left put it "to reproduce hierarchy." To deflect justified claims that schools like Harvard were doing so, it was necessary to ensure sufficient representation of URMs, "see, we are not reproducing hierarchy, we are progressive, look at all the URMs we are educating" while still giving preferences to lacrosse players, children of alums, graduates of fancy prep schools and so on. Schools like Harvard have actually gotten much better at recruiting, giving aid to, and retaining kids from more modest backgrounds. But in the meantime, the commitment to diversity became part of the campus culture, not to mention a litmus test for progressiveness. You can tell that actual ethnic "diversity" though was never and still isn't the goal by the way they lump all South Asians, East Asians, and Filipinos into a single category, as if a Pakistani, a Mongolian, a Korean, and an Indonesian American all contribute to campus ethnic diversity in precisely the same way.

          1. I think you're wrong about the lumping. That's how student statistics are reported externally, because the DoE asks for them that way. That's not how it works internally, within the admissions office.

            I don't necessarily agree with your history, but whatever, it's irrelevant. You say that the current reason for Harvard's commitment to diversity is that it's part of the campus culture. Well, that seems totally legitimate. Even diversity being a litmus test for progressives is legitimate, since that's a big part of Harvard's market. Neither of those motivations is "ulterior" in the way that Ilya (and David N) are suggesting. They both indicate that Harvard is seeking diversity for its own sake, not as cover for some underlying social justice or racial spoils impulse.

            1. "I think you're wrong about the lumping. That's how student statistics are reported externally, because the DoE asks for them that way. That's not how it works internally, within the admissions office." Yes, it is. It came up in the Harvard litigation. Harvard has an "Asian" category when considering demographics, it has no subcategories.

              As for the motivation, you asked what was the institutional motivation, which I provided. You did not ask what was the ideological motivation for the true believers. There are some who have come to truly believe the diversity rationale, and who somehow have concluded that US government categories exactly match up with "diversity" considerations. But the most significant impetus is to redress historical discrimination against African Americans. Whenever I've spoken publicly about affirmative action, and I point out that many groups now benefit from it, especially in contracting, and only a minority of the beneficiaries are black, every other panelist proceeds to ignore me and talk only about the need for representation of African Americans and the history of whites' discrimination against them. Particularly strange in the context of Fisher v. U. Texas, where the primary "winners" were Hispanics (really Mexican Americans) and the "losers" mostly "overrepresentatied Asians" (mostly Chinese and Indians, most Asian groups are not "overrepresented).

              1. The "lumping" came up in the litigation as what, part of the complaint? And you took it as true? From Harvard's brief:

                Harvard, moreover, “does not treat race monolithically because students of the same race do not ‘share the same views, experiences, or other characteristics,’” Pet.App.34; Harvard takes into account, for example, that there are “different groups and sub-groups within the category of Asian Americans,”
                C.A.J.A.1003:15-1004:1.2

                2 SFFA disparages Harvard’s use of the term “Asian American,” but this category is set by the federal government’s Integrated Postsecondary Educational Data System...

                Which also makes logical sense. Why would Harvard do the dumb thing? Even if they had an ulterior motive - which I don't see - they're smarter than that.

                Your evidence that Harvard's admissions office has ulterior motives is that you sat on an "affirmative action" panel and some of those people were into social justice for African Americans? That is some serious transference. I fully believe there exist people working hard for social justice for African Americans, I even know some. That doesn't mean everyone with a commitment to diversity is in reality focused on social justice for African Americans... especially not the Harvard admissions office, which, as you pointed out yourself, has ample reason to want to bring bona fide diversity to campus (and has never, historically, shown the slightest interest in social justice).

                1. Harvard takes into account, for example, that there are “different groups and sub-groups within the category of Asian Americans,”

                  Harvard can say lots of things that gullible people can believe, but their application does not ask people to check boxes for Mongolian or Armenian or Pashtun or Hmong; it has a box for Asian.

                  1. You mean the Common Application? Its FAQ acknowledges this shortcoming and encourages applicants to work around it by explaining their race / ethnicity more fully in one of the freeform sections. In other words, Harvard has and uses demographic data about applicants beyond that one question.

                    1. What evidence do you have that Harvard, when looking at its demographic balance, consider Asian subgroups rather than Asians as a whole? Self-serving statements in a legal filing don't count. I'll wait.

                    2. What evidence do you have that they don't? Remember, you're the one claiming that no one could be so stupid as to lump all Asians together for diversity purposes. I agree. There's no reason for Harvard to be lumping all Asians together, but you're claiming they do it anyway. You don't even have a theory for why they would be lumping them together. It makes no sense. Just sort of a wild, nonsensical accusation designed more as a talking point than a reasonable proposition. I see no reason to defend against it since you offer no evidence for it. It also doesn't matter to me if you remain delusional. People reading this will know which interpretation of the facts makes sense and which one is ludicrous on its own terms.

                      Let me ask you this. In your mind, does Harvard have access to more granular data and they simply choose to ignore it, or do they not even have the data?

  23. It does not have to be so complicated. Make the affirmative action standard not ancestral slavery, but ancestral or personal disadvantage under Jim Crow, prior to 1980. Exclude candidates from families with resources which exceed the current upper 40% of family wealth.

    Document affirmative action decisions. Keep records. Limit how many times any candidate can make an affirmative action claim.

    Do the same sort of thing on the basis of Native American ancestry. Tell the Supreme Court that has nothing to do with race, and everything to do with recompense for actual policies of genocide.

    Get rid of all the other categories.

    Do not strive for unattainable perfection of eligibility lists. Expect candidates to try to game the system, and be calm about it. Let the personal limit on claims, and the family limit on wealth, do the work of limiting the programs and phasing them out.

    1. You're right, it doesn't have to be complicated. It does, unavoidably, have to be evil, though.

      I'm severely disappointed in Somin for even giving these proposals the time of day. Even that is too much for proposals to despoil the innocent to give money to those they didn't wrong.

      These proposals aren't really meant to correct any injustice. They're just meant to keep us racially polarized by telling people to keep dwelling on old injustices, while committing new ones.

      1. Somin has a habit of making up unworkable "answers" as a rhetorical dodge.

        He concedes that the other side has a point and then proposes some nonsense scheme that could never be implemented as a "solution". Then continues to advocate his policy preference, having "solved" the issues of people questioning him.

        It’s a let them eat cake approach. He should stop doing it and either take both sides seriously or just advocate his preferences and let someone less dismissive talk about the other side.

    2. Make the affirmative action standard not ancestral slavery, but ancestral or personal disadvantage under Jim Crow, prior to 1980.

      Jim Crow was dead by 1970.

      1. He also wants to exclude people from successful families, and not even particularly rich families at that. His thinking seems flawed.

        1. My thinking is that affirmative action should be treated as necessary, powerful, dangerous medicine, and thus used much more carefully, and much less than it has been.

          1. If the purpose is to redress past mistreatments, shouldn't it look only at the severity of those mistreatments? It seems odd to (relatively speaking) penalize a family whose ancestors were enslaved but who overcame that adversity. You end up preferentially subsidizing the people who are historically less able to recover, which only makes sense for an equal-outcomes policy goal.

          2. My thinking is that "affirmative action" as it was first conceived, (Making an extra effort to find minority candidates, before proceeding with an impartial evaluation of all the candidates.) wasn't so bad, but it was replaced by open or disguised racial quotas almost immediate, on the realization that there weren't really that many objectively qualified minority candidates being passed over. That the problem was that various factors, (Not remotely all of them racial.) had resulted in an actual disproportion in qualifications.

            And racial quotas are more of a powerful, dangerous poison, than medicine. Rather than helping racism go away, they perpetuate it.

            1. Bellmore, quite a few medicines are poisons, including even potentially deadly poisons. They get used with an eye to making them do more good than harm, by regulating the amount of use, and the method of use, and discontinuing them when they ought to be stopped.

              That is what I have proposed for affirmative action. Your advocacy can be interpreted as intent to leave the patient untreated. Say why you want to do that.

              1. I've been through chemo, I am personally well acquainted with the use of poisons as a medication.

                Nobody was kidnapping people passing by and hooking them up to the IV as part of treating me; I was the one being poisoned.

                What I'm saying here is that, regardless of the benefit to the supposed beneficiaries, the continuation of racial discrimination is poisoning race relations in America, and I think by intent.

                1. Bellmore, I think you measure other folks' intent by your own subjective state of mind. Whatever you feel, you think that is what they intended.

      2. Seamus, no, it wasn't. The federal government was using Jim Crow lending standards in the Department of Agriculture in the 1970s.

        If you look at government generally, we are seeing a revival of Jim Crow voting practices throughout the South, right now.

        1. I think a simple social class/wealth standard would be far better. You cut through the fat to the heart of the problem. The son of a doctor or engineer doesn't need help, not matter his skin or ancestry. A fatherless child of a minimum wage mother does, no matter what happened 50 or 200 years ago.

          Affirmative action punishes the child born as "white trash" in a trailer park in favor of a wealthy black kid in a Georgia mansion based on race.

        2. "a revival of Jim Crow voting practices throughout the South, right now."
          You mean ones practiced in most Western democracies, but that you don't approve of for the US.

          1. He is surely being accurate and means those states are implementing ridiculous literacy tests and poll taxes with grandfather clauses. Right?

          2. Nico, there are no comparable western democracies which share the U.S. history of chattel slavery and Jim Crow. No amount of rationalistic comparison can wash that legacy out of existence.

        3. If you look at government generally, we are seeing a revival of Jim Crow voting practices throughout the South, right now.

          This is laughably wrong.

          1. Nieporent, racial gerrymandering is Jim Crow writ large. It would be stupid to insist otherwise, so long as the targets of those policies continue working to defeat them.

            1. The only racial gerrymandering going on in the US right now is the creation of 'majority minority' districts to artificially enhance the power of blacks. I'm pretty sure that wasn't a practice during Jim Crow.

    3. "Let the personal limit on claims, and the family limit on wealth, do the work "
      Not a bad idea. Every one under the age of 50, who have no grandparents who arrived in the US after 1920, gets one and only one, non-transferable Affirmative Action Chit. Document affirmative action decisions. Keep records.
      Make the rest of AA illegal

      1. Nico, for affirmative action and diversity as policies, one of the worst, hostility-provoking features has been the norm to deny dishonestly the negative impacts of specific decisions on particular persons. An alternative approach to govern those policies would be to record every specific affirmative action decision, and to specify in the record particular persons who were adversely affected. Put a limit on how many times any one person can be made to sacrifice.

        And spread the sacrifice around. Make sure a fair share of the job losses go to high status people. Is the applicant standard at the fire house a bare ability to get the job done? Just so for Harvard professors—until the programs' objectives have been adequately accomplished.

        So long as the set of potential affirmative action claimants can be sufficiently pared back—by limiting use of the policy to victims of Jim Crow and genocidal policies against native Americans—a more-limited scope should still supply plenty of extra assistance where it is needed.

  24. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

    Justice Sandra Day O'Connor [in Grutter]

    Professor Somin: Why was she wrong? You seem to argue that she was.

  25. Many universities admit black Africans to meet diversity quotas. This has even caused problems where African Americans have complained about this. Union College in NY was one place if I remember correctly. Requiring documentation that an applicant is descended from slaves would eliminate this problem. However, the mixed race issue would make such a policy nearly impossible to carry out. What if someone is descended from slaves and slave owners? Highly likely.

    1. And many black immigrants are more directly descended from slave owners than most white Americans. Slavery lasted long past the Civil war in Africa, indeed still hasn't been totally eradicated there.

      And let's not forget that the slave traders bringing slaves from Africa weren't conducting raids and capturing people, they were buying Africans from other Africans. Being descended from a slave owner is probably more common in Africa than America!

  26. " it would mean extending it to a large number of applicants whose claim to be victims of racial injustice is"

    Wait so is your goal about race or not? It seems like what you're really telling us is you really do want to provide benefits based on race, and "descendants of slavery" is just your trojan horse.

  27. The problem is that the real purpose of affirmative action, etc, is as a racial spoils system, rewarding leaders of certain minority groups for getting their constituents to vote for Democrats. Everything else is fluff and pretext.

    Diversity works as a justification for discriminating on the basis of race or ethnicity - except that it is likely to be ultimately rejected by the Supreme Court as illegal and unconstitutional. The problem with using repayment for past harms of, for example, slavery is that, by necessity has to be color blind, and thus of no benefit for those pushing for racial preferences. It is both over inclusive and under inclusive. Kamala Harris wouldn’t be VP, but the children of some southern Crackers would have gotten her preferences all along the way.

    Some other problems with this solution. It can be argued that some Chines and Japanese immigrants were treated worse than some Black slaves. On the West Coast, they were faced with the equivalent of Jim Crow laws, while Blacks there mostly weren’t. During WW II, almost all of the descendants of Japanese immigrants on the west coast were rounded up, moved east to concentration camps, and had their property seized. That was probably harsher than the Jim Crow laws that many Blacks lived under. On the flip side, while Hispanics faced some discrimination, it was no doubt less than that of Jews and Chinese. How are you going to get the votes of Hispanic politicians for giving up their own racial spoils, while the blacks they compete with get to continue theirs?

    Another problem is that the real problem, in particular for the descendants of black slaves today is/was LBJ’s Great Society/War on Poverty, effectively destroyed the nuclear family more thoroughly, so far, than for other groups of poor, by financially incentivizing single parenting. Plenty of Black descendants of slaves kept their nuclear families intact, and thrived. Plenty of descendants of white slave owners did not, and suffered similarly to the Blacks from single parent families.

    Back to my major point. We need to look at what we are really trying to do here. Are we looking to perpetuate a racial spoils system? Or are we truly trying to right historical wrongs? If the latter, then by necessity it is going to have to be race blind.

    1. the real purpose of affirmative action, etc, is as a racial spoils system

      You really wrecked that strawman.

      1. No, he's right. Might not have started out as a racial spoils system, but it became one quite early on.

        1. And your evidence seems to be mostly discarding all the other reasons offered for it due to the usual liberal telepathy.

          1. And my evidence for this is,

            1) It's the Democratic party championing it, and the Democratic party for all its history has been the party of racial spoils. Presumptively if they're handing out something on the basis of race, it's spoils.

            2) It started out very early as just an effort to look harder for qualified blacks. The "qualified" swiftly got dropped, it became all about meeting quotas, and now we've got this 'reparations' garbage making the goal explicit: Take stuff from whites, and give it to blacks.

            1. So 1) is you believe the Dems are bad, and that's all the proof you need.

              And 2) is declaring blacks in higher education to by and large be unqualified.

              I suppose 2 goes along with your concerns for immigrants wrecking American culture and your defense of The Bell Curve. Not a very flattering set of beliefs, IMO.

              I'm not a fan of reparation's, but the argument is not some new Democratic trick.

              I like to ask this question of whites feeling put upon. Would you trade being white for being black these days? I work with black PhDs daily, and given the stories each and every one of them has, I would absolutely not.
              That's the thing about privilege - it's easy to ignore unless you look for it.

  28. So; like we said in the sixties, "reality is a crutch"?

    First, slavery was always an economic institution, not a racial one.
    Second, unless I missed it on my slow scroll to here, no one is talking about who pays the "reparations". I would nominate the descendants of those who actually did enslavement. Let all the "holders in due course" off the hook. We can go after the Arab raiders, and the African tribal leaders who took prisoners of war, and excess daughters, and unruly sons, and sold them. And of course, every nation in the old world who ever enslaved the losers in every war.
    How much, and to whom? As a solution in search of a problem, this may be the best option to keep the busybodies out of any real problem.

    1. Oh, yes. I almost forgot.
      The "Native Americans" were also slave takers and slave owners.
      And in the USA, blacks held blacks in slavery.

    2. First, slavery was always an economic institution, not a racial one.

      Tell me you don't know anything about U.S. history without saying you don't know anything about U.S. history.

      1. I am talking about slavery, not US history.
        In the earliest known records, slavery is treated as an established institution. The Code of Hammurabi (c. 1760 BC), for example, prescribed death for anyone who helped a slave escape or who sheltered a fugitive. The Bible mentions slavery as an established institution. Slavery was practiced in almost every ancient civilization.

        1. I am talking about slavery, not US history.

          So when you said "always" you meant "sometimes"?

  29. You forgot the combination that is potentially most problematic: what if a person is a descendant of both a slave owner and a slave? In the case where the the owner raped the slave, it is easy to see the slave as the victim, though still with all the questions about how to process it centuries later. But what if that wasn't the case? A person who was a slave in the early 1700s (and are we counting people who were only enslaved in the British colonies before the US existed?) could have a descendant who was viewed as white and bought a slave in the early 1800s. Or a descendant of a slave and a slave owner could have met and produced offspring at any point after emancipation. Would descendants of such a lineage be victims or oppressors? Should they receive this preferential treatment or not?

  30. A slave ancestor is still using race. Slaves in the US were black, a few exceptions before 1640 does not change this fact.

    Any affirmative action system where the daughters of Michelle Obama qualify but the daughters of a white 7/11 clerk with no black ancestors do not qualify is bad.

    Only affirmative action based on financial situation is fair and non-discriminatory. A child of any race or mixture of races can come from a poor family.

    1. The goal of college admissions affirmative action should be to level the playing field for applicants who were deprived an equal opportunity to show their potential in K-12. So I agree that should be socioeconomic-based and color-blind.

      But as I've argued here before, there's the separate matter of an unpaid national debt for the theft of slaves' life, liberty and labor, a theft enabled, supported and enforced by our constitution and laws. As a nation -- every demographic, not just white people -- we will continue to owe that debt until paid. Some form of reparations are in order for the victims' heirs, difficult though it may be to trace, identify, calculate and administer.

      1. >150 years ago.

        1. So? It took Russia and Britain almost 70 years to reimburse us for Lend-Lease. Your debts don't disappear just because it takes you a long time to pay them back.

          1. "Your debts don't disappear just because it takes you a long time to pay them back."

            Debts also don't accrue based on skin color.

            1. Skin color was obviously relevant to who became a slave, but it had nothing to do with the moral debt incurred by enshrining and enforcing legal rights of slave ownership. Do you think I think slavery would have been fine if only the slaves were white?

  31. Best argument FOR the ADOS benefit: It would exclude B. Obama, whose mother's ancestry was entirely White and whose father's ancestry was entirely African (not enslaved, at least not in what's now the US). Good argument AGAINST the ADOS benefit: It would benefit Obama's wife and children, who are among the most privileged people now living in the US.

  32. If not for the many injustices perpetrated by various Russian and German regimes, I almost certainly would not have even been born. My grandmother lost nearly all of her family, including her first husband, in World War II; many of them perished in the brutal 900 day siege of Leningrad. If not for these horrific events - the responsibility of Hitler's regime, with an assist from Joseph Stalin and the Nazi-Soviet Pact - she likely would never have married my grandfather (whom she met after the war), nor given birth to my father. Indeed, even a slightly different chain of events from that which actually happened would have prevented me from ever existing. In a perverse, but real, sense I am at least as much a beneficiary of Hitler and Stalin's injustices as I am a victim.

    Sorry, Ilya, but this is, on its own terms, a really silly argument. It leads to the inevitable conclusion that, by just being alive, we are beneficiaries of any past event that affected our ancestors in any way.

    "If that murderer hadn't shot that guy outside my parents' house that night, and caused the yelling and sirens and whatnot that woke them up, I might never have been conceived. Good thing for me he did that."

    1. I had the same reaction. Not that Ilya intended this, I'm sure, but it's a short hop to Pat Buchanan's "black people never had it so good."

      1. I doubt you can deny that is true - of pretty much every American. What you may be claiming is black people should have it better.

    2. "Sorry, Ilya, but this is, on its own terms, a really silly argument. It leads to the inevitable conclusion that, by just being alive, we are beneficiaries of any past event that affected our ancestors in any way."

      That is, in fact, inarguably true. In fact, we are the beneficiaries of all of world history, good and bad, without which those trillions to one odds of that one egg meeting that one sperm wouldn't have happened. And it's a good reason not to get melanchonly (or worse violent) over injustices that took place long before one's birth.

  33. Thinking of "reparations" as akin to a damages claim incurred by an enslaved ancestor and passed down through the generations is evocative. It builds on intuitions we have about justice and fairness and has some recent historical precedents - reparations for victims of the Japanese internment, for instance. And it's also just popular among American Blacks, who don't mind at all the possibility of receiving a direct cash payment.

    But it comes up very easily against this line-drawing problem, where we are trapped in these discussions about what damages count - e.g., just slavery, or also Jim Crow, or also more modern forms of race slavery and injustice - who properly has "inherited" the claims, and so on. We end up very easily with these absurdities of paying a wealthy white person for harms suffered by a slave ancestor two hundred years ago, but denying compensation to a descendant of more recent immigrants (or free Blacks, for that matter) who has still had to struggle with white supremacy in American society.

    This whole discussion gets the problem wrong. Reparations should not be thought of as merely a cash payment to be made to some group of modern Americans. It needs to be thought of as a broader program of actually eliminating the vestiges of centuries of white supremacy in American law and society, and bringing members of all races on truly equal footing. In other words, we need to truly level the playing field, so that when we say, "equal opportunity, not equal outcomes," we are not actually just making an empty promise that preserves a deep segregation in our communities, our wealth, our families, by pure inertia.

    Consider affirmative action in higher education. As has been frequently pointed out, we are not doing the Black community any favors if we push their high school graduates into environments where they are not equipped to perform well or succeed. Simply placing a quota on Black placement in higher education is like making a cash payment to all Black Americans as "reparations" - a band aid that does little to address the underlying systemic inequalities.

    Instead, the solution to Black under-representation in higher education is to address the underlying problems that give rise to Black under-performance in admissions standards, which means paying serious attention to the way we've divested from public education in Black communities; the cycles of intergenerational poverty we've created through municipal policies on land use, taxes, and so on; the criminalization of Black men and Black youths; right down to basic questions like early childhood education, childcare, nutrition. If the average Black community looked like the average white community, the gap in higher education would disappear.

    Similarly, the problem we're trying to address with "reparations" is really a deeper and broader racial inequality that still persists in our society. A simple wealth redistribution is not going to do much more than exacerbate that inequality. We need more fundamental reforms of American society to achieve the desired result.

    Whether the Supreme Court will allow us to do this, though, is another question.

    1. The major cause of the underpermance of Blacks continues to be single parent child rearing, subsidized for over a half century now by our federal govt, thanks to LBJ’s Great Society/War on Poverty.

      1. So you agree that structural racism continues to the present day?

  34. Reparations should only be paid by the original slave sellers. That means the African states that profited from capturing and selling slaves.

    1. Sure, everyone but the seller is innocent as the driven snow. What could be wrong with buying, owning, raping, beating and working to death for your own profit another human being?

      1. Which of us here, today, has done that?

    2. That would be terribly anti-black and anti-Semitic.

  35. How will the millions of (white) descendants of slaves of the Roman Republic/Empire be compensated?

    1. Aside from the non-trivial differences between forms of slavery, there's the small matter of there no longer being a Roman Republic to write the check.

  36. You know, for a bunch of lawyers to miss the obvious solution is mind boggling. Just create another massive govt agency whose sole purpose is to determine who is and is not entitled to these preference awards. It could be headed by professors since they would be the only ones to have the intellectual power to determine this. Staff it with thousands of interns that exist only to generate reports, studies, etc.

    Of course, nothing would ever get done and no money would end up going to any disadvantaged person as it would be entirely used up by this agency. But that's what makes it so perfect. No one could ever complain that any money had ever been awarded to someone who didn't deserve it.

    Every one involved in this agency would be able to feel all noble and self righteous. I would nominate the Rev as the first head of the agency.

  37. You neglected to mention people like me. On both sides I can trace my ancestry to indentured servants and convicts sent to the Georgia penal colony in the 1700's. Both statuses were little more than slavery by another name.

    1. Or what do you do with someone who is descended both from slaves and slave owners?

  38. We ought to just replace race-based preferences with class-based preferences. Such preferences would be easy to administer, would be constitutional, and would help the people who actually need the help. It wouldn't give preferences to the children of affluent minorities, and it wouldn't exclude the children of poor whites. It would provide a disproportionate amount of help to minorities, so it would serve much the same function as race-based preferences. But because it's not overtly-racial, conservatives would be less likely to oppose them.

    1. Where in the constitution does it lay out American society with legal classes?

  39. Full-employment act for genealogists: Just because you believe that someone was your great-great-great-grandpa does not make it so. In order to provide proof, someone would need a massive amount of documentary proof, and then that documentary proof would have to be backed up by DNA. Unless you are a genealogist who has worked in both the world of paper-trail genealogy AND DNA genealogy, you cannot begin to comprehend how many hours of research it would take to prove such claims.

  40. This approach would avoid many of the flaws of traditional racial preferences.

    No it would not.

    Like, not at all. Only incredibly stupid smart people would think it does.

    For a starter, it drastically simplifies the very complicated chain of responsibility that goes from warring tribes in Africa taking slave, to the people who bought and sold them (including many of the nations that slaves were taken from), to issues of responsibility 'free' states had towards slave in other states, all the way to WHAT FUCKING RESPONSIBILITY DO I HAVE FOR THINGS DONE A HUNDRED AND FIFTY YEARS AGO? Not even by my relatives.

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