In Defense of PRIVATE Affirmative Action

In order to put together a “diverse” student body, it is standard practice for many colleges and universities to use race as a factor in admissions. An unintended consequence of this policy is that some students who otherwise qualify for admission are denied because of their race.

These race-factor admissions programs are invariably Affirmative Action programs like those that give special consideration to certain minorities in employment and contracting decisions.

Abigail Noel Fisher and Rachel Michalewicz allege that they were denied entrance to the University of Texas because they are white. After they were denied enrollment in the fall 2008 semester, Abigail went on to Louisiana State University, where she will graduate this spring; Rachel attended St. Edward’s University in Austin (also the home of the University of Texas), graduated after three years, and is now a law student at Southern Methodist University.

But the girls did something in addition to attending other schools — they sued the University of Texas, challenging the constitutionality of its admissions process. Since then, U.S. District Court Judge Sam Sparks in Austin dismissed the lawsuit, a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans affirmed the decision, and, in an en banc rehearing and by a 9-7 vote, the full Fifth Circuit refused to consider an appeal.

Opponents of Affirmative Action are hoping the Supreme Court will take up the case. A petition for a writ of certiorari was filed on September 15. Six amicus curiae briefs were then filed with the Court, which has asked the University of Texas to provide a reaction to the new challenge to its admission policy. (Rachel Michalewicz is no longer part of the case, since she has graduated from college already.)

On December 16, the Heritage Foundation and the Federalist Society co-sponsored a debate on the case featuring two advocates for each side, including the original counsel for the University of Texas in the case.

There hasn’t been this much attention to a college admissions Affirmative Action case since Gratz v. Bollinger and Grutter v. Bollinger, both in 2003.

In Gratz, an undergraduate admissions policy at the University of Michigan with a point system awarding 20 points to members of “underrepresented groups” on the basis of race alone was struck down as unconstitutional by a vote of 6-3.

In Grutter, a preferential admissions policy at the University of Michigan Law School that was based on race and had no specific point system but admitted less-qualified minorities over more-qualified whites was ruled constitutional by a vote of 5-4 because “the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.”

Both of those cases harken back to the first Supreme Court Affirmative Action case, Regents of the University of California v. Bakke (1978). In that case, Alan Bakke, a white man, was twice denied admission to the medical school at the University of California at Davis even though his qualifications exceeded those of any of the minority students admitted in the two years since his applications were rejected.

Although the Supreme Court ruled, by a vote of 5-4, that the university’s admission plan was unconstitutional and ordered that Bakke be admitted, it also ruled, by a vote of 5-4, that the use of race as a factor in admissions decisions in higher education was constitutional. In the words of Justice Lewis Powell, who cast the deciding vote in each case, “The judgment below is affirmed insofar as it orders respondent’s admission to Davis and invalidates petitioner’s special admissions program, but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.”

It is interesting that both California, in 1996, and Michigan, in 2006, had successful ballot initiatives that ended Affirmative Action in admissions to state universities and other public institutions, although the Michigan initiative was recently overturned by a federal court.

Affirmative Action had its beginnings not as a federal program, but as two words in a sentence. In 1961, John Kennedy, in Executive Order No. 10925, created the Committee on Equal Employment Opportunity to end discrimination in employment by the government and its contractors. Every federal contract was required to include this pledge:

The Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The Contractor will take affirmative action, to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.

Applicants for positions would be judged without any consideration of their race, religion, or national origin.
The Civil Rights Act of 1964, in title VI, sec. 601, reinforced that idea:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Lyndon Johnson, however, expanded that goal. In a 1965 commencement address at Howard University, he said,

Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. We seek not just freedom, but opportunity. We seek not just legal equity, but human ability; not just equality as a right and a theory, but equality as a fact and equality as a result.
He then issued Executive Order No. 11246, which laid the foundation for a federal program that would later develop into what is known as Affirmative Action:

It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, to prohibit discrimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency.

Under Richard Nixon, the Department of Labor in December 1971 issued Revised Order No. 4, requiring all contractors to develop “an acceptable affirmative action program,” including “an analysis of areas within which the contractor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor’s good faith efforts must be directed to correct the deficiencies.”

So after beginning as two words in a pledge by federal contractors to employ people without regard to race, color, creed, or national origin, “affirmative action” morphed into a program enforced by the Equal Employment Opportunity Commission (EEOC). Headquartered in Washington, D.C., but also working through 53 field offices in every part of the country, the EEOC has 2,500 employees and a $367 million budget.

Affirmative Action is usually seen as a divisive issue, with liberals generally supporting it and conservatives generally opposing it, but such shouldn’t be the case at all.

It is clear that government and public institutions have no business giving adverse or preferential treatment to anyone on the basis of race, color, religion, national origin, ethnic group, sex, age, et cetera. But that doesn’t mean that affirmative action, quotas, discrimination, or preferential treatment based on those characteristics aren’t viable options in a free society — as long as it is a matter of individual liberty and private property instead of government decree.

For the libertarian, the issue is not divisive at all, because, as Jacob Hornberger explains,

A person has the fundamental right to associate with anyone he chooses and on any basis he chooses. He might be the biggest bigot in the world, choosing only to associate with white supremacists, but that’s what freedom is all about — the right to make whatever choices one wants in his life, so long as his conduct is peaceful — i.e., no murder, rape, theft, fraud, or other violent assaults against others.

In a free society, private schools, businesses, organizations, and individual persons would be free to practice or not practice affirmative action. In fact, it couldn’t be otherwise and still be a free society.

If a private school wanted to grant preference in admissions to students of a particular race then so be it. If a parent or student thought the school was too white, too black, too Latino, or too Asian, then he could look for another school.

If a private business wanted to give discounts only to customers of a particular religion, then so be it. Customers of other religions could still continue to shop there or take their business elsewhere. (Strange that no one complains about the widespread prevalence of senior-citizen discounts, that is, age discrimination.)

If a private organization wanted to limit its membership to a specific sex, then so be it. No persons of either sex have the right to force any private organization to admit them.

If a person wanted to associate or not associate with people from particular ethnic groups, then so be it. It doesn’t matter if it is illogical. It doesn’t matter if it is based on false stereotypes. It doesn’t matter what the reason, and it’s no one’s business what the reason is.

“Anything that’s peaceful” means anything that’s peaceful. That is the difference between a free society and one overseen, managed, or controlled by government bureaucrats at the EEOC and the myriad of other federal agencies that infringe upon liberty, property, and the freedom of association.

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Prime Minister Cameron pledges to 'kill' health and safety culture

The Prime Minister faced down criticism from small business owners over Government solar tariff and taxation today as he launched a campaign to “kill” the UK’s "excessive" health and safety culture.

David Cameron used his first public engagement of the year to stress to an audience of business owners in Maidenhead, Berkshire, that the Coalition would do “everything we can to help” in what would be a “tough” year for the economy.

He also declared “war” on what he described as the “excessive health and safety culture that has become an albatross around the neck of British businesses”.

The number of existing health and safety regulations is to be cut in half by the end of the year and a cap imposed on the legal fees that can be charged on employer and public liability claims worth less than £25,000 to reduce costs and discourage vexatious claims.
However, the Prime Minister was attacked for the Government’s handling of the solar panel tariff debacle and for HM Revenue & Customs apparent failure to collect £25bn in tax from large companies like Vodafone and Goldman Sachs.

Erica Robb, who runs Sprit Solar in Reading, told the Prime Minister that the decision to give the solar panel industry six weeks notice of the reduction in the feed in tariff in December was “disgraceful”.

Referring to the Prime Minister’s earlier claim to understand business because he had worked in companies, she said: “A container [of solar panels] takes 12 weeks to arrive; planning permission takes 12 weeks. David Cameron has PR experience, not industry experience. He has not run an order book that runs out 12 weeks or more.”

Mr Cameron said the Government could have handled the “timing” of the tariff cut better, but defended the need to cut the tariff after more people installed solar panels than expected.

Julie Meyer, founder of venture capital firm Ariadne, also raised HMRC’s decision to write off tax owed by large companies while at the same time fining small businesses for failing to maintain adequate records.

The Prime Minister said “a tougher approach” to tax collection was needed to ensure that all businesses paid their “fair share” of tax and that the Government was considering an “anti-avoidance power” to address the issue.

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African ignorance in London

A TEENAGE boy was tortured and drowned on Christmas Day 2010 by his relatives after they accused him of practising witchcraft, a court has been told.

Kristy Bamu, 15, suffered 101 different injuries from being attacked with a chisel, a hammer and a metal bar, and was in such pain that he begged to die, prosecutors told the Old Bailey in London.

The victim had travelled with his two brothers and two sisters from Paris, where they lived with their parents, to stay with their older sister Magalie Bamu at her flat in east London.

Prosecutors said Magalie Bamu's partner, Eric Bikubi, had started the horror by accusing Kristy and his two sisters of witchcraft and Bikubi then launched a campaign of torture.

Kristy's siblings were forced to join in the attacks on him during their four-day ordeal before they were all placed in a bath and hosed down with cold water on December 25, 2010, the court heard.

Paramedics were called when Kristy fell unconscious but he was pronounced dead and an autopsy found he died from a combination of being beaten and drowning.

"Kristy had been the victim of a prolonged attack of unspeakable savagery and brutality," prosecutor Brian Altman said.

"Wickedly, the defendants also recruited sibling against sibling as vehicles for their violence. In a staggering act of depravity and cruelty, they both forced the others to take part in the assaults upon Kristy."

Several calls were made to the children's parents in the French capital but their father did not realise what was going on, Altman said, adding: "He had sent his children on holiday, not to a torture chamber."

The defendants were both originally from the Democratic Republic of Congo.

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Amazing Leftist stupidity over Australia's most solemn day of commemoration

Leftists just don't get it. They are emotionally stunted

ANZAC Day, arguably the most sacred day on the Australian calendar, is in danger of being "branded" by the Federal Government.

War veterans say the 2015 centenary of the Australian landing on Gallipoli will speak for itself, without the need for hype, slogans or motifs, The Daily Telegraph reported. But federal bureaucrats have spent $100,000 on focus groups to determine how to "brand" the big day.

A market research company was paid $103,275 to conduct focus groups nationwide, including in Melbourne, last year.

Former premier Jeff Kennett said it was "an abject waste of money". It should be clear to the Government what the day means, and the idea of "branding" it was ridiculous, he said. "Anzac Day has come to mean so much that increasing numbers of young people are participating in dawn services and other commemorative services around Anzac Day," he said.

"It is a political intervention which should be snuffed out immediately, not just because it's a waste of money but because Anzac Day ... (is) profoundly celebrated and commemorated."

World War II veteran and ex-PoW Frank Holland-Stabback, who will march for the last time this year, agreed, saying Anzac Day allowed him to show his pride in serving his country. "I think Anzac Day is known well enough as it is."

Victorian RSL boss David McLachlan said he did not want to comment until he had seen the plans.

A Department of Veterans' Affairs spokeswoman said the idea for "a national brand or motif" emerged from an Anzac Centenary Advisory Board meeting on October 14. It was "not unusual for the Australian Government to undertake focus testing for a project of this scale and importance", she said.

The Government was tendering for a design, and she said concepts were "focus tested by a market research company" with defence force members and people from various age groups. They were asked how well each motif gained their attention and which they considered would best represent the Anzac centenary. "This was important to determine resonance with the Australian community," she said.

Ray Brown, from the Injured Service Persons Association (Peacetime), said the Government's approach was inappropriate, and Anzacs who fought at Gallipoli would have been stunned.

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Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.

American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.

For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, GUN WATCH, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL and EYE ON BRITAIN (Note that EYE ON BRITAIN has regular posts on the reality of socialized medicine). My Home Pages are here or here or here. Email me (John Ray) here. For readers in China or for times when blogger.com is playing up, there is a mirror of this site here.

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