The affirmative action cases
Part I: Vestiges of discrimination

I decided the best way to first approach the recent decisions in Gratz v. Bollinger, the undergraduate case, and Grutter v. Bollinger, the graduate school case, is to ask: Is the Supreme Court of the United States getting the historical context right? I believe it is important to ask this question because to have any meaningful understanding of affirmative action one must first understand the history of slavery and its aftermath in America. The most direct way to interrogate the issue is to consider the vestiges of slavery present in contemporary American society. By 'vestiges,' I mean historical conditions that have a causal connection to current differences between white America and non-white America, particularly the African-American component of the latter group.

Increasingly, however, scholars, historians and psychologists have been trying to understand the present by exploring the past. Many of the nation's most renowned African American scholars have posed theories linking slavery and it's aftermath to everything from strained relations between Black men and women to the harsh way some African Americans discipline their children. Inherited health problems such as diabetes and hypertension? Some have traced them to the slave diet.  

The almost total lack of significant inherited wealth is widely considered a direct result of 300 years of enslavement and the government-led discrimination that followed. 

In the educational context, vestiges of slavery are reflected in the fact that many African-Americans now in their 30s and 40s were the first to attend school for a full year's term in the South. The common practice was for children of color to attend school only during the months when their labor was not needed by white property owners. Of course, those schools were still often racially segregated and sometimes stopped short of the full 12 years of education. Furthermore, parents with little or no education were unable to pass on knowledge to their children for generations. Lack of income precluded setting up private schools, an alternative to being ignored and disdained by the government, in most places. The terror campaigns carried out by the Ku Klux Klan and other radical racists made even mild forms of rebellion against the status quo extremely risky. I believe these pressures against black Americans becoming educated still play a role in educational underachievement today.

Did SCOTUS squarely face the issue of vestiges of discrimination? The answer is 'No.'

But some court watchers and legal experts say the battle over Michigan's policies will leave another important subject largely undiscussed.

Constrained by earlier court rulings, the university won't argue that affirmative action is necessary to remedy this nation's history of racism and discrimination. And for some, the inability to deal squarely with race and the vestiges of slavery is a large disappointment.

Some say the court's reluctance to deal with affirmative action in its historical context closely mirrors a national aversion for frank talk about race and racism. They say it reflects the predilection to converse instead about things that evoke fewer awkward feelings, and less guilt or potential conflict. And so, the debate that will unfold in the court Tuesday will focus on the pursuit of diversity _ a less controversial idea _ rather than on how to correct inequalities produced by racism

I support the position that pursuit of diversity in higher education and workplaces is a good thing. However, I believe the law took a wrong turn when it began to look away from what W.E.B. Du Bois called the major issue of the twentieth century -- the division between haves and have-nots, colored and white, developed and undeveloped -- staring in 1978 and continuing through the 1980s. Eliminating the vestiges of slavery is a stronger argument for integration, including affirmative action, than the pursuit of diversity. So, why are many people uncomfortable with it?

Racism has become, in our collective conscious, a question of individual bigotry or prejudice," said Harvard law professor Lani Guinier, who is a co-founder of the Racetalks Initiatives, a joint project between Harvard and Columbia universities that seeks to create opportunities for people to more openly discuss race, gender and other controversial issues.

"No one wants to discuss a concept that might implicate them," Guinier said. "It's more comfortable to talk about things that are less threatening."

My old friend Theodore Shaw explains just how difficult it is to even get the courts to consider that understanding the impact of racism over the years is key to repairing the damage it has caused.

Ted Shaw, associate director of the NAACP legal defense fund, sees the court's rulings as even more harmful.

"In a way, we considered Bakke a loss, because it eliminated the proper legal basis for these programs," Shaw said, about the Regents of the University of California v. Bakke decision in 1978.

The NAACP filed a supportive brief in the Michigan cases, which asked the court to approve broader remedial affirmative action programs. The court declined to give them time to argue their case.

The court's path to limited acknowledgement or discussion of broad societal discrimination also paralleled the country's shift in that direction.

The tragic aspect of this shift is that I don't believe really significant change in race relations, particularly in regard to African-Americans and Indians, can occur without confronting the vestiges of slavery and genocide. Limited reforms can be achieved by focusing on diversity in education and employment. However, half and sometimes more of those populations are not even in a position to take advantage of admission to a good college or to apply for a job that requires competitive skills. By looking away from the realities of race and American history, the courts, and society, look away from remedying the contemporary effects of that history.

Note: Gratz is No. 02-516. Argued April 1, 2003--Decided June 23, 2003. Grutter is No. 02-241. Argued April 1, 2003--Decided June 23, 2003.

The scared Negro disease

Three-term Atlanta Mayor Maynard Jackson was never one to back down from a challenge, especially if that challenge involved hostile white folks. Jackson died Monday and some people are thinking about his legacy. Among them is Renee Mitchell, a columnist for the Oregonian.

Last year, former Atlanta Mayor Maynard Jackson visited Portland to talk about what he called "the scared Negro disease."

"I think that white folks must go home at night, lock their doors and laugh," said the keynote speaker at the National Forum for Black Public Administrators conference. NFBPA is a 20-year-old professional group dedicated to the advancement of blacks in public leadership.

"We've struggled this long, gave up this many lives . . .," Jackson said. "Now, we've got power and are scared to use it."

The scared minority disease is not new. (There are also Asian, Hispanic and Indian versions of it.) It part of the reason why clear-cut evils such as segregation and vanishment to poverty stricken reservations have lasted as long as they have in America. Most minority people over hundreds of years have convinced themselves it is better if they don't fight back -- that going along with their enemies, either overtly or covertly, is easier. The so-called radicals, people who will not compromise, have always been in the minority. Yet, it is they who have been the key to the progress made in race relations in America, not their trembling counterparts. Maynard Jackson was one of those 'radicals.'

Jackson was known for forcing open the windows of opportunity. In the '70s, he insisted on a fair portion of the $400 million being spent on the Atlanta airport expansion go to minority- and women-owned businesses. Where are today's change agents? Jackson asked.

"There's lots of talent and wisdom out there," says Roy Jay, founder and president of the African American Chamber of Commerce. "But they haven't thought about rising to the occasion because somebody told them it couldn't be done."

Jay, a Portland businessman, is as right as rain. Too many members of the minority middle-classes huddle in fear, afraid of suffering some loss if they dare not lick the boots of white people who tell them they should be leading them. Some of those white folks are conservatives, others call themselves moderates or liberals, but all have the same place for people of color in mind -- beneath them. How can such people of color escape a trap they have often willingly entered?

Mitchell points to Portland for instruction.

As Portland becomes more diverse, however, there is a growing impatience with the status quo. Fewer professionals of color are exhibiting symptoms of "scared Negro disease." Fewer are tolerating injustice with a bowed head and a plastic smile.

Among the recent efforts at standing on their hind legs she sees among area people of color are:

*Opposition to special, lower educational standards for minority students in Oregon;

*The intrusion of black, Asian and Hispanic business people into a sweetheart deal between city government and wealthy white business interests that gave the latter a cushy contract for nearly all parking facilities downtown for years. The coalition landed the $4.35 million, five-year Smart Park contract, to the surprise of many.

*A continued, combined effort at reforming the Portland Police Department after the shooting of Kendra James, 21, a few weeks ago. Actions have included pressure on outside bodies for investigations and well-attended protests.

*A plan to field a black candidate for City Council.

Mitchell quotes Jackson's words during his visit here last year.

"Now is not the time to end the struggle," Jackson said at last year's conference at the Oregon Convention Center. "Things have changed but not enough."

A giant died Monday.

But, how about the little people in the wee blogosphere? Scared Negro disease seems to be on a rise here since a minority blogger was harassed for daring to speak out about racism among some 'liberal' bloggers. Prometheus 6 recently rolled over in his back and waved his legs in the air because a Right Wing blogger praised him for an entry on racism that said next to nothing about racism. Jesse of Pandagon has been strangely silent about his own experiences with racism from some conservative and liberal bloggers. In fact, he is doing some brown-nosing of Right Wingers, too. McBain, of course, is the poster boy for scared Negro disease. I suppose this proves the blogosphere reflects the real world. However, even a few voices emanating from minority bloggers who will not urinate in their pants if a white blogger voices the slightest disapproval can and will make a difference. I will be doing whatever I can to encourage the development of such voices.

Around the Web

Of course I will be blogging the Supreme Court of the United States' decision in the University of Michigan affirmative action cases, released today. However, I want to give the mixed decision a thorough reading and some thought first. In the meantime, don't miss these fine entries.

*When an 'A' is lower than a 'C'

Laura Gleason reports that rapper Snoop Dogg, he of the long face and lewd lexicon, had his own case before SCOTUS, along with the producer of "Girls Gone Wild." Initially, Snoop had a complaint about diversity. . . or lack thereof.

Snoop Dogg isn't wild about ``Girls Gone Wild'' anymore. The rapper, who appeared as the host on one of the raunchy strip videos, told The Associated Press he's done with the series because it doesn't feature women of color. ``If you notice, there hasn't been no girls of (ethnicity) at all on none of those tapes,'' Snoop Dogg complained during a recent interview. ``No black girls, no Spanish girls -- all white girls, and that (stuff) ain't cool.''

Eager to please, or at least not to lose a recognizable name as a host, producer Joseph Francis instituted his own affirmative action policy, with Snoop providing the action. How does one weigh such attributes as bra size, bounceability and perkiness? Read the rest of this salacious satire at Miscellareous for the double scoop.

*Caste conflict comes to U.S.

Centrist Rick Heller informs us diversity troubles at the University of Michigan are not over yet at Smart Genes.

Pinaki Mazumder left India 20 years ago believing that he would no longer come under scrutiny because of the caste in which he was born.

But Mazumder says the social class distinctions of his native country followed him to the University of Michigan, where he claims discrimination from an Indian administrator of a higher caste in the engineering department affected his performance reviews and pay raises.

I am not sure how to mirror caste in the American system of jurisprudence. I suppose race discrimination is closer to caste discrimination than dicrimination based on national origin, though the two are obviously related. I also forsee a problem getting a jury to understand what is at issue. A predominantly white jury will just see two dark-skinned foreigners. The intricacies of the caste system in India may be lost on the jurors altogether.

And, no, I don't believe the plaintiff is making up his claim of discrimination. Sad to say, but some people of color, for example the bigots at Gene Expression, firmly believe in caste and color discrimination.

*What's in a name?

Victor at Balasubramania's Mania has thoughts on another kind of discrimination -- a surname that makes a person stand out.

Having a really long (and seemingly tough to pronounce) name from a different non-Euro culture I can definitely contribute my two bits of personal experience. When I was younger I would dread the first day of class because teachers would butcher my name and fellow students would have a field day taunting me about it. Later on in life, in social settings the artsy/funky/yuppie crowd thinks its cool. It's now a status@! In the legal profession it probably does not have a negative impact. A friend of mine (who is a designer and not a lawyer) said she would love to have my name as part of her firm name. "it sounds soo cool." One thing's for sure, it stands out from the crowd.

I am glad Victor decided to keep his ethnic name instead of becoming 'Vic Brown.' Will we see more of that with the current generation of immigrants and children of immigrants?

Ironically, my real name (which is not J.) is so common that I changed it from the sixth grade until the 11th grade, insisting on being called something else. (Just the opposite of Balasubramani, you could say.) Now, I use part of my original name and my ex-husband's last name professionally most of the time.

Other voices: The New Weblog Showcase

*Across, Beyond, Through

I've said before I am not much of an admirer of personal blogging. That preference grows out of my taste in reading and writing in other contexts I suspect. I engage in those activities mainly to look outward, though sometimes looking outward can inform the inward. Too much of personal blogging is navel-gazing in my opinion.

The blogger at Across, Beyond, Through, who calls himself Rev. Sparker, has written a personal weblog entry for the New Weblog Showcase.

I started this morning by checking my brother's blog. He's the real geek in the family. I'm always disappointed when there's nothing new, though I can't say I blame him for taking a vacation. He deserves it. He just started another publication, uptime, that I've also been reading. He just added a new contributor--one that is kind of weird for me. I followed the link to the new guy's blog and found myself reading about the life of someone who to me, has always been an enigma.

This mystery man is my brother's dad. Growing up I knew that we had different fathers, but I never thought of this man named "Dave" as being any more real than the tooth fairy or the boogey man. He was the long-gone and not-much-missed ex-husband of my mother. When he was mentioned, it wasn't too favorable. But since he predated my existence, it felt like myth. Strange to read the blog of a mythical man...

I've been following their reunion through my brother's emails, his blog, and a few phone conversations. I have to say that sometimes I'm a bit jealous. This mythical man, Dave, seems to have grown up and gotten his life together. My brother speaks of seeing for the first time how much of himself is somehow connected to Dave. They both love computers and are Linux geeks. They have similar gestures and habits. They have reclaimed their bond as family, as father and son.

The entry climaxes with the revelation the author has been estranged from his own father for a decade. Rev. Sparker handles the material about as well as anyone could, I believe. What must have been a temptation to wallow in self-pity is avoided. He is able to confront his brother's newfound relationship with his father without becoming overwhelmed with envy. The entry is not all about him.

That strongly contrasts with some personal blogging by 'Cowboy Kahlil,' i.e., Kevin Hayden, a blogger from the Pacific Northwest last week. In his entries, he revealed:

*Imagining himself to be qualified to treat manic depression and drug addiction (with a high school diploma and a few semesters of college), he did something to his eldest son that has led the youth not to speak to him for the last six years -- since he was, fortunately, able to free himself from his father's custody.

*He self-treated himself for depression and believes he did so successfully, despite irrational behavior that suggests the exact opposite, and,

*He has 'special powers' that allow him to know things he can't possibly have any insight into about other people. Said 'powers' have convinced him he is a lawyer and a private detective. In fact, a 50-year-old man has been playing at both. He may be the world's oldest kindergartner.

The conduct of people like Hayden is why I am wary of personal blogging. It provides the perfect opportunity for the foolish and deluded to prove themselves to be foolish and deluded publicly. Hayden apparently believes himself to be some kind of fount of wisdom, when nothing could be further from the truth.

Rev. Sparker avoided the pitfalls in his entry, but I still believe personal blogging to be a minefield for most people who are likely to attempt it.

*Archy

I am surprised he was able to get that name from Blogger. By now, almost anything short, sweet and simple should be gone.

John McKay's entry focuses on the dichotomy between the Bush administration's rhetoric and its actions in regard to big business.

Why do they support this man?

The current administration calls itself Republican, yet it is betraying most of the traditional Republican constituencies. Everyday, the deficit plunges to new record depths on the watch of the party for whom "balanced budget amendment" was once an article of faith. Everyday, Ashcroft undermines rights and freedoms that the libertarian wing of the party once claimed were sacred. The military supports the party that sends men and women to die in wars that make us less safe while that same party slashes the education budget for their children and the VA benefits for their injuries. What about business? The Republicans have always been the party of business. Bush expects to raise $200 million for the election, most of it from prosperous business people. Surely, the party is good for them.

The party is clearly good for Halliburton and any other resource extraction company with ties to Cheney. And with wars and rumors of wars, it must be good for the fabled military-industrial complex. Right? Not always. Like most modern corporations, the industrial side of the military-industrial complex has become globalized and diversified. There is big money to be made supplying the U.S. armed forces, but that's just part of their bottom line. There is also money to be made selling burgers in Bavaria, autos in Africa, cola in Canada, and airplanes in Asia. Modern corporations need it all. This is where they are screwed.

McKay's primary example of the administration's short-sightedness is its undermining of aeronautics giant Boeing by cutting back participation in the Paris air show. The Bushites' reason? Payback to France for not falling in line in regard to the invasion of Iraq. Though he writes in an unassuming style and does not present himself as an expert on anything, McKay cuts through the smokescreen the current administration has erected to explain just how it is shooting itself, and its constituency, in the feet.

*Prometheus 6

Prometheus 6, who I hear has found new work as a chimney sweep, has entered a piece in the contest that is vaguely about racism, I gather. He urges readers to randomly compile a list of words and then ask strangers to divide them into two categories.

Now suppose something happens that affects you and I. Suppose each of us tries to figure out why that thing happened. We will definitely be able to come up with an explanation? it's like finding a pattern in those random words. Because the pattern you see is partly in your mind? the pattern exists between things you know about the things you're thinking about. If you know more or less about things you'll come to a different conclusion about the chain of cause and effect that you're trying to figure out. But you will come to some conclusion.

With that in mind, consider this: what if you and I, the people who are trying to figure out why something that affected both of us happened, had no significant experiences in common? We'll both come up with an explanation? but what are the chances we'll agree? And if our explanation is used to determine our response to the event, what are the chances that we'll find ourselves at odds?

We will always find a reason for things that fits into our knowledge. If we want the truth, rather than just an explanation, our knowledge must be as broad as possible and as deep as necessary. And if our knowledge is to serve justice we can't be satisfied with just our own perspective ? justice requires the recognition of absolute values and relative knowledge, with the most relative knowledge being that which we claim for our own.

Accurate, I think, as a general statement of how people reason. However, I don't believe the experiment applies to racism very well because people don't enter into it as bare slates or randomly. Indeed, the perceived race of the individual asking for the words or that the words be organized would likely influence what words were given and how they were divided.

So, why would someone submit such a poor example of reasoning about racism when he is capable of better? To be very careful, I suspect. Response to substantive remarks about racism are likely to be quite different than those to pabulum like that in this entry, especially in the blogosphere, where any real attention to racism results in jeremiads of denial.

A striking feature of my browse of the current entries in the contest was discovering two blogs with broken links among the six I fully read. As you may know, Silver Rights fell victim to broken links when it was entered in the contest, losing more than half of the 19 links it should have definitely had. I wonder if Blogger, with its tendency to sabotage its users, is even more of a factor in this contest than the voters.