Where the bad old days live on
In "Organized labor and the bad old days" Paul took note of Professor Paul Marino's Wall Street Journal column on the historic role of labor unions in practicing racial discrimination. Professor Marino argued that the entrenched commitment to racial discrimination by labor unions was an important source of the regulations that gave rise to affirmative action.
The birth of affirmative action roughly coincided with the adoption of the principle of equal treatment as a matter of law. The great victory of the civil rights movement led by Martin Luther King, Jr. was one of moral persuasion: King persuaded Americans that it was wrong and deeply unAmerican to treat citizens differently based on the color of their skin. That victory of moral persuasion was translated into the Civil Rights Act of 1964, the law that prohibited discrimination on the basis of race, ethnicity, or sex in employment, public accommodations, and federally funded programs (including colleges and universities).
It is beyond the scope of Professor Marino's column to note that, despite the legal mandate of equal treatment, for the past 30 years many of America's educational institutions have blatantly violated the law in the name of affirmative action and diversity. In reality these terms are extremely misleading euphemisms for the practice of gross racial discrimination.
The depth of the racial discrimination practiced in the university setting is evident in the record of the two University of Michigan cases decided by the Supreme Court in 2003. In the undergraduate school, applicants for admission were simply sorted into different pools with lower admission standards if they identified themselves as African-American, Hispanic, or Native American, and higher standards if they identified themselves as white or members of non-preferred minority groups. In the law school, the university rigged its standards year after year to achieve a minimum 10 percent quota of students from designated "underrepresented" minority groups (African American, Mexican American and Native American).
Like other elite institutions of higher education throughout the country, for years the university covered up its practice of racial discrimination. When exposed, it chose to defend what it could not conceal, and it did so in the name of "diversity." Unfortunately, the Supreme Court blessed a covert form of racial discrimination in the name of diversity in the Grutter case. In the unversities the theory and practice of racial discrimination accordingly remain entrenched.
Professor Gail Heriot is professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights. She recently devoted a Wall Street Journal column to affirmative action in law school admissions. As she explains in the column, she thinks that affirmative action may harm its intended beneficiaries as a result through the mechanism of "academic mismatch." Thomas Sowell has for many years argued that affirmative action harms its black beneficiaries in this manner, as he did, for example, in "The grand fraud: Affirmative action for blacks."
Professor Heriot's column was timed to accompany the release of the Civil Rights Commission's 220-page report critically evaluating of the use of racial preferences in American law school admissions and calling for the ABA to quit "tacitly prodding" law schools to employ racial preferences in admissions. Professor Paul Caron has collected an excellent set of links to the report and related commentary here.
The Society of American Law Teachers (SALT) is an ardent left-wing organization that is committed to the practice of racial discrimination in law school admissions. Note the hysteria in SALT's message to its members in response to the Civil Rights Commission's report:
We are greatly disappointed and alarmed by the recommendations of the U.S. Commission on Civil Rights as reported in the story below. The Commission’s report calls for requiring law schools to disclose detailed information about their use of affirmative action and the short and long term success of their minority students. Furthermore, the report urges the ABA to drop the requirement that law schools demonstrate a commitment to diversity.The specters summoned by Kaufman and Mahmud are to arise from the treatment of applicants for law school admission without regard to race. They find the restoration of the founding principle of the civil rights law to be disturbing. They remain committed to the theory and practice of racial discrimination. Knowing the depth of the racial discrimination practiced in their world, their concern about what they characterize as the confirmation of stereotypes by vitue of the disclosure of the results of affirmative action itself provides confirmation of the gist of the Civil Rights Commission's report. If one seeks the successors to the disgraceful labor union leaders that resisted the treatment of citizens without regard to race, one need look no further.We believe that, if adopted, these recommendations will sound the death knell for efforts to cultivate diversity in our schools and to open the doors of legal education and law practice for those who have long been denied access to the profession. We also believe that the recommended steps will distort legal education by furnishing incentives to “teach for the bar exam,” will fuel racial stereotypes and create further hurdles for minority bar applicants and attorneys. We find disturbing the highly partisan and ideological nature of the recommendations. It is sadly ironic that this blueprint to roll back civil rights that were won as a result of great struggle and sacrifices comes from a body charged with protection and enhancement of civil rights.
SALT is putting together a formal response to these recommendations and is fashioning a comprehensive strategy to resist this new assault on civil rights, social justice and access to legal education. In the meanwhile, we urge all of you to contact opinion-makers and law-makers and identify the serious threat to diversity posed by the Commission’s recommendations. An urgent and critical struggle is at hand.
Best regards,
Eileen Kaufman & Tayyab Mahmud
Co-Presidents SALT
