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Affirmative Action. What do you think about it?

zacharyl20

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Re: Affirmative Action. What do you think about it?
« Reply #90 on: March 21, 2006, 09:24:57 PM »


Also, please enlighten us with your unfathomable pre-L wisdom: how exactly is race-based affirmative action against our Constitution?  And pray tell, what distinguishes a hypothetical socio-economic status-based affirmative action from its race-based cousin in this respect?  Your claim here is baseless, tenuous, and weak.


Lacoste,

This doesn't seem very fair.  Aren't you also a pre-L?  Your response isn't any more illuminating than the OP's assertion.

Moreover, many scholars have argued (and several Supreme Court Justices have accepted) that race-based AA is unconstitutional.  The assertion is certainly not baseless, tenuous or weak.  It was unsupported, granted, but that doesn't mean it's baseless.

Also, you pose the question: what would distinguish SES based AA from race-based AA?  Yet, you do so in a condescending manner, as if there isn't a meaningful, constitutional distinction.  Of course, the argument that AA is unconstitutional is that it violates the equal protection clause, which explicitly prohibits discrimination on the basis of race.  Indeed, the Supreme Court has developed a fairly nuanced jurisprudence, applying varying levels of scrutiny depending on whether the governmental action discriminates on the basis of race, gender, or some other factor.  In particular, race based discrimination, benign or otherwise, is subject to strict scrutiny.  As the name implies, strict scrutiny is quite rigorous, and very few forms of race-based discrimination survive.  By contrast, discrimination on the basis of SES would be subject only to rational basis review, a standard often described as “toothless.”  I think it is beyond reasonable doubt that SES-based AA would be found constitutional.  Thus, as a constitutional matter, race-based AA is meaningfully different from SES-based AA.  

[/quote]

Thanks Lurking Third Year, it is obvious that Lacoste has an extreme amount of friends on this board. I was getting attack from every angle, and no one attacked his weak arguments. Thanks for posting, you have finally brought some equality to this thread. Excellent counter-argument.

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Re: Affirmative Action. What do you think about it?
« Reply #91 on: March 21, 2006, 09:28:20 PM »

Lacoste,

This doesn't seem very fair.  Aren't you also a pre-L?  Your response isn't any more illuminating than the OP's assertion.

Moreover, many scholars have argued (and several Supreme Court Justices have accepted) that race-based AA is unconstitutional.  The assertion is certainly not baseless, tenuous or weak.  It was unsupported, granted, but that doesn't mean it's baseless.

Also, you pose the question: what would distinguish SES based AA from race-based AA?  Yet, you do so in a condescending manner, as if there isn't a meaningful, constitutional distinction.  Of course, the argument that AA is unconstitutional is that it violates the equal protection clause, which explicitly prohibits discrimination on the basis of race.  Indeed, the Supreme Court has developed a fairly nuanced jurisprudence, applying varying levels of scrutiny depending on whether the governmental action discriminates on the basis of race, gender, or some other factor.  In particular, race based discrimination, benign or otherwise, is subject to strict scrutiny.  As the name implies, strict scrutiny is quite rigorous, and very few forms of race-based discrimination survive.  By contrast, discrimination on the basis of SES would be subject only to rational basis review, a standard often described as “toothless.”  I think it is beyond reasonable doubt that SES-based AA would be found constitutional.  Thus, as a constitutional matter, race-based AA is meaningfully different from SES-based AA. 


LTY,

Thanks for the response and for putting forth some arguments we can examine.

First, many scholars have argued that race-based AA is unconstitutional.  However, the SCOTUS has agreed that race-based AA is not unconstitutional.  Quotas may be, points systems may be, “critical mass” systems may be, but race-based AA is fine absent these constructions (see Grutter v. Bollinger).  That fact aside, I stand by my claim that Zachary’s specific assertion was baseless (he stated no authorities), tenuous (could easily be argued back or knocked down by even a personal anecdote because of lack of support), and weak (even with argument, the fact that SCOTUS is still of differing opinion about the issue of race-based classifications makes the entire premise of the argument shaky).  I may have been dismissive, but I still think I was accurately gauging the content and strength of Zachary’s post.

Second, I understand the application, function, and relation of strict scrutiny as it regards to violations of the Equal Protection Clause regarding race-based classification.  My point was that if you go by Grutter you can argue that race-based AA policies are constitutional (as opposed to quota and other unconstitutional systems a la Gratz and, earlier, Bakke).  As such, I felt that Zachary needed to explain what was so intrinsically unconstitutional about race-based AA before we moved on to the merits of SES AA.  If there are no arguments that persuade us that race-based AA fails to help those it is designed to help the most (the argument Zachary seems to agree with but cannot support in any way) or that it is unconstitutional (which is not the case if SCOTUS precedent is carefully examined), then we need not waste time with the merits of instituting a SES-based AA system in its stead.

And finally, we could consider a SES-based AA system as well if we needed to.  You are correct in your analysis that discrimination based on wealth is subject only to Rational Basis analysis.  Griffin v. Illinois (1956) and Harper v. Virginia Board of Elections seemed to hint that SCOTUS would use a higher standard of scrutiny in evaluating such cases but this was never to be fully realized.  San Antonio Independent School District v. Rodriguez (1973) once and for all settled that discrimination based on wealth should receive only Rational Basis review (albeit in a 5-4 decision).  So yes, in theory, it is a lot more likely that a SES-based AA policy will clear the constitutional hurdle than a race-based AA policy.  But because, as I noted earlier, race-based AA policies are largely found to be constitutional, we need not venture into this field at all.

Good points though.  At least you offer up arguments to back your claims (rather than deeming them all simply "assumptions" and therefore attempting to shield them from criticism or response).

Hope to hear more from you soon.
lacoste


Re: Affirmative Action. What do you think about it?
« Reply #92 on: March 21, 2006, 09:32:28 PM »


Thanks Lurking Third Year, it is obvious that Lacoste has an extreme amount of friends on this board. I was getting attack from every angle, and no one attacked his weak arguments. Thanks for posting, you have finally brought some equality to this thread. Excellent counter-argument.
[/quote]

Sure.  I seem to have messed up the quote, but I was quoting lacoste from the third page of the discussion (as of course you know).

I only made that comment b/c I thought lacoste wasn't being fair w/you.  He was criticizing you, implying that you didn't understand the law surrounding AA.  Yet, his respone left me with the impression that he wasn't well versed in constitutional law himself.


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Re: Affirmative Action. What do you think about it?
« Reply #93 on: March 21, 2006, 09:36:02 PM »
I'm always down to learn more if you feel my knowledge is deficient.  Enlighten me.  I love constitutional law and like to think I know a thing or two about it.  So try me.   ;D

Re: Affirmative Action. What do you think about it?
« Reply #94 on: March 21, 2006, 09:41:11 PM »

Lacoste,

This doesn't seem very fair.  Aren't you also a pre-L?  Your response isn't any more illuminating than the OP's assertion.

Moreover, many scholars have argued (and several Supreme Court Justices have accepted) that race-based AA is unconstitutional.  The assertion is certainly not baseless, tenuous or weak.  It was unsupported, granted, but that doesn't mean it's baseless.

Also, you pose the question: what would distinguish SES based AA from race-based AA?  Yet, you do so in a condescending manner, as if there isn't a meaningful, constitutional distinction.  Of course, the argument that AA is unconstitutional is that it violates the equal protection clause, which explicitly prohibits discrimination on the basis of race.  Indeed, the Supreme Court has developed a fairly nuanced jurisprudence, applying varying levels of scrutiny depending on whether the governmental action discriminates on the basis of race, gender, or some other factor.  In particular, race based discrimination, benign or otherwise, is subject to strict scrutiny.  As the name implies, strict scrutiny is quite rigorous, and very few forms of race-based discrimination survive.  By contrast, discrimination on the basis of SES would be subject only to rational basis review, a standard often described as “toothless.”  I think it is beyond reasonable doubt that SES-based AA would be found constitutional.  Thus, as a constitutional matter, race-based AA is meaningfully different from SES-based AA. 


LTY,

Thanks for the response and for putting forth some arguments we can examine.

First, many scholars have argued that race-based AA is unconstitutional.  However, the SCOTUS has agreed that race-based AA is not unconstitutional.  Quotas may be, points systems may be, “critical mass” systems may be, but race-based AA is fine absent these constructions (see Grutter v. Bollinger).  That fact aside, I stand by my claim that Zachary’s specific assertion was baseless (he stated no authorities), tenuous (could easily be argued back or knocked down by even a personal anecdote because of lack of support), and weak (even with argument, the fact that SCOTUS is still of differing opinion about the issue of race-based classifications makes the entire premise of the argument shaky).  I may have been dismissive, but I still think I was accurately gauging the content and strength of Zachary’s post.

Second, I understand the application, function, and relation of strict scrutiny as it regards to violations of the Equal Protection Clause regarding race-based classification.  My point was that if you go by Grutter you can argue that race-based AA policies are constitutional (as opposed to quota and other unconstitutional systems a la Gratz and, earlier, Bakke).  As such, I felt that Zachary needed to explain what was so intrinsically unconstitutional about race-based AA before we moved on to the merits of SES AA.  If there are no arguments that persuade us that race-based AA fails to help those it is designed to help the most (the argument Zachary seems to agree with but cannot support in any way) or that it is unconstitutional (which is not the case if SCOTUS precedent is carefully examined), then we need not waste time with the merits of instituting a SES-based AA system in its stead.

And finally, we could consider a SES-based AA system as well if we needed to.  You are correct in your analysis that discrimination based on wealth is subject only to Rational Basis analysis.  Griffin v. Illinois (1956) and Harper v. Virginia Board of Elections seemed to hint that SCOTUS would use a higher standard of scrutiny in evaluating such cases but this was never to be fully realized.  San Antonio Independent School District v. Rodriguez (1973) once and for all settled that discrimination based on wealth should receive only Rational Basis review (albeit in a 5-4 decision).  So yes, in theory, it is a lot more likely that a SES-based AA policy will clear the constitutional hurdle than a race-based AA policy.  But because, as I noted earlier, race-based AA policies are largely found to be constitutional, we need not venture into this field at all.

Good points though.  At least you offer up arguments to back your claims (rather than deeming them all simply "assumptions" and therefore attempting to shield them from criticism or response).

Hope to hear more from you soon.
lacoste



Hey lacoste,

You raise several good points.  Frankly, I only jumped in b/c I thought you were being unfairly dismissive.  I also didn' think you knew much about constitutional law, but I take that back after reading your post.  I don't really want to get into the argument as to the constitutionality of race-based AA.  But I still don't think the statement that it violates the constitution is baseless, weak or tenuous.  

I find AA debates interesting as a matter of constitutional law, and I think the debate raises issues you don't often see in other areas. For example, there is not a lot of jurisprudence surrounding the meaning of a compelling state interest.  I don't usually join these discussions b/c too many people are too emotionally invested in the debate.  To be clear, I'm not directing this latter statement at you, just a general observation.

Sorry if my prior comments came across the wrong way, btw.  



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Re: Affirmative Action. What do you think about it?
« Reply #95 on: March 21, 2006, 09:55:19 PM »
Hey lacoste,

You raise several good points.  Frankly, I only jumped in b/c I thought you were being unfairly dismissive.  I also didn' think you knew much about constitutional law, but I take that back after reading your post.  I don't really want to get into the argument as to the constitutionality of race-based AA.  But I still don't think the statement that it violates the constitution is baseless, weak or tenuous. 

I find AA debates interesting as a matter of constitutional law, and I think the debate raises issues you don't often see in other areas. For example, there is not a lot of jurisprudence surrounding the meaning of a compelling state interest.  I don't usually join these discussions b/c too many people are too emotionally invested in the debate.  To be clear, I'm not directing this latter statement at you, just a general observation.

Sorry if my prior comments came across the wrong way, btw. 




LTY,

Definitely no problem.  I think all Internet conversations suffer the same plight; it is nearly impossible to detect tone in written words.  I think Zachary suffered from this when he wrote his "assumptions" regarding the financial status and intellectual capacity of some of the BLSD board members.  I suffered from it when I wrote about the "baseless" nature of Zachary's arguments.  And you suffered from it, I thought, in interpreting my flippant response as indicative of a lack of knowledge on the topic of constitutional law.  Here we are all to blame for the shortcomings of ourselves and others.  My apologies.

I can relate to your unique interest in AA debates because of their relationship to the debate regarding what constitutes a compelling state interest (Thomas’s dissent in Grutter is particularly good for this) because I share a similarly “nerdy” (hope not to offend) interest in the fine points of commerce clause jurisprudence.  My ex-girlfriend still hates me for the many nights I’ve elected to read cases like Champion v. Ames (the lottery case) or Hammer v. Dagenhart (the child labor case) instead of watching Sex in the City with her.  I know, I have no life.

My hope is that if enlightened debate on the merits of a decision such as Grutter is desired, we can have that (not necessarily us, but the board, America, etc.).  If not, I definitely hope to be able to engage in some sort of discussion of constitutional law and jurisprudence in the future! 

Lacoste.

Re: Affirmative Action. What do you think about it?
« Reply #96 on: March 21, 2006, 10:02:48 PM »
.

Re: Affirmative Action. What do you think about it?
« Reply #97 on: March 21, 2006, 10:07:22 PM »
Hey lacoste,

You raise several good points.  Frankly, I only jumped in b/c I thought you were being unfairly dismissive.  I also didn' think you knew much about constitutional law, but I take that back after reading your post.  I don't really want to get into the argument as to the constitutionality of race-based AA.  But I still don't think the statement that it violates the constitution is baseless, weak or tenuous. 

I find AA debates interesting as a matter of constitutional law, and I think the debate raises issues you don't often see in other areas. For example, there is not a lot of jurisprudence surrounding the meaning of a compelling state interest.  I don't usually join these discussions b/c too many people are too emotionally invested in the debate.  To be clear, I'm not directing this latter statement at you, just a general observation.

Sorry if my prior comments came across the wrong way, btw. 




LTY,

Definitely no problem.  I think all Internet conversations suffer the same plight; it is nearly impossible to detect tone in written words.  I think Zachary suffered from this when he wrote his "assumptions" regarding the financial status and intellectual capacity of some of the BLSD board members.  I suffered from it when I wrote about the "baseless" nature of Zachary's arguments.  And you suffered from it, I thought, in interpreting my flippant response as indicative of a lack of knowledge on the topic of constitutional law.  Here we are all to blame for the shortcomings of ourselves and others.  My apologies.

I can relate to your unique interest in AA debates because of their relationship to the debate regarding what constitutes a compelling state interest (Thomas’s dissent in Grutter is particularly good for this) because I share a similarly “nerdy” (hope not to offend) interest in the fine points of commerce clause jurisprudence.  My ex-girlfriend still hates me for the many nights I’ve elected to read cases like Champion v. Ames (the lottery case) or Hammer v. Dagenhart (the child labor case) instead of watching Sex in the City with her.  I know, I have no life.

My hope is that if enlightened debate on the merits of a decision such as Grutter is desired, we can have that (not necessarily us, but the board, America, etc.).  If not, I definitely hope to be able to engage in some sort of discussion of constitutional law and jurisprudence in the future! 

Lacoste.


No need to apologize and no offense taken -- I've come to grips with my "law nerd" side.  

I agree about Thomas' dissent being particularly interesting regarding the compelling state interest issue.  That is primarily what I had in mind when I made the comment.  

You seem like you have a good approach to the law and I'm sure it will serve you well.  

Maybe once the year starts we can have some studying/outlining/exam taking threads.  I'll be in practice by then, but I've done very well in school and think I have some fairly dececent info to share.

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Re: Affirmative Action. What do you think about it?
« Reply #98 on: March 21, 2006, 10:19:11 PM »
Coming late to the conversation (just saw the link on the main page). A little personal background before giving my opinion of AA:

I'm white, grew up very poor in what was called a "slum" when I was a kid, meaning according to the parlance a largely African-American, impoverished, high-crime neighborhood in a second-tier West Coast city.

It was difficult. I witnessed my mom being mugged by a gang of black guys while she was loading groceries into our car one night (I was 5, maybe 6). There was another time when a black man in the next lane, at a stop light, motioned for my mom to roll down the window, then waved a wrench in her face and called her a "white h***y b***h." Numerous other stories of attacks, racial slurs, etc.

That's far from the whole story. On our street, all of the kids, the 2-4 white kids and the rest, were simpatico. It was when you crossed over a street that, being white, you got into a bunch of trouble (for no other reason than being white.)

All this by way of acknowledging that, this far along in life, there is still quite a bit of ambivalence in my heart with respect to race relations. Not having ever owned a slave (my family in my lifetime didn't own so much as a blade of grass), nor having ever experienced the so-called "privilege" or "access" of being white (poor as sh**) , I couldn't understand why black kids were so pissed off at me all the time.

Now, regarding AA:

While I haven't worked all, or really any, of those issues out, I have come to terms with the historical sources of the sword that hangs between whites and blacks in America. Long-story short, it wasn't blacks who put the sword there to begin with. White men outfitted vessels for long voyages, sailed to West Africa, kidnapped African men and women, sardined them into the holds of those ships, brought them back to the West Indies and America, put them in chains and set them to work as chattel for the rest of their lives. And their children's lives. And their children's children's lives. And their children's chil....

After two centuries of  out-and-out bondage, during which African sweat and blood was poured into every brick of the juggernaut U.S. economic infrastructure without so much as a single day's wage being paid to a single slave, the contradiction between our ideals and our hypocrisy spilled over into a little thing called the Civil War. Even after that conflagration, the former slave-holding states waged oppression by other means while the North and West turned, at best, a blind eye. Dispossession and neglect were written into the very laws against blacks, and their humanity was called into question as a matter of course (the famous headline after a ferry sank comes to mind: "Tragedy at sea: 10 men, 18 negroes die", or something similar).

And on and on. We all know the story. The pathologies that I saw afflicting the African American community in my childhood, which took a bite out of my own happiness and security, were sown by that communal experience, ratified by however countless many generations in America. One after another ethnic group came over voluntarily and jumped in front of them. Discriminated against in education, housing, health care, employment, in every dimension of civil life.

Finally the lid blew off. Nobody can eat that much shite for that long without eventually vomiting it back out. But what I witnessed, the crime, the poverty, the ignorance, were a result of that treatment.

It's absurd to say that somebody coming out of that should be expected to compete on the same level for opportunities with others who are under no such disadvantage. Forgoing affirmative action does not make the playing field level, it simply leaves existing inequities in place and unaddressed.

Am I at peace with the difficulties, arising from racial hostility, of my childhood. No, I have deep-seated resentment about it. But, coming into adulthood, it is required that one acknowledge certain facts about the nature of our society. Blacks in America aren't down because they got drunk and fell down. Blacks in America are down because they were knocked down and held down, metaphorically speaking. I see AA as a way of helping them back up. It's like that Malcolm X quote they played at this year's Oscars. "If you stick a knife in my back 9 inches, taking it back out six inches isn't making it right. Making it right means healing the wound."

Just my opinion.


My problem is that I was trained as a debater and critical thinker, so I really have few solid opinions of my own.  I just like to play Devil's Advocate (and hear the sound of my own voice).  I was a socialist, then I was a radical conservative (a la Thomas), and now I'm a more reasonable conservative.  That said, I am still up in the air regarding AA (pissing off plenty of my conservative friends).  I can certainly see the merits of arguments on both sides of the aisle.  It is a tough subject that requires a national discussion about race, education, and the status of Blacks in America.  That's all I'll say now because I'm tired.

And LTY, I'm down to partake of as much of that law school experience/wisdom you wish to dole out.  I'll keep my eyes peeled.

Young Esq.

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Re: Affirmative Action. What do you think about it?
« Reply #99 on: March 25, 2006, 12:41:31 PM »
Bump...

I'm late as hell, but I just read Justice Thomas's dissent in Grutter. All I can saw is WoW. Thomas said a lot of things that white America (and some of Negro America) was and is still not ready for. He made it his point to quote Fredrick Douglass, which was a good move because many Blacks do not respect his opinion, but we do respect Fredrick Douglass.

The problem with under performance of black students and the dangling of the prestigious school does have a negative affect. I believe that If you accept me into your law school you better know that I can do the work.  If I get in I expect that the admissions couselors are expecting me succeed and not just give a boost to the asthetics of the entering class.

There is also the tone of Malcolm X in his dissent.  This to say that black students perform better when they are among student of a like background (ie.. HBCU's) and that segregation is not all bad and can actually increase the community as a whole thought teamwork. This an interesting point that I have no comment on. I will however point out Black Wall Street, Harlem, and other prosperous black communities that worked well before they were torn apart.

Thomas also talks about the inadequacy of the LSAT which is a very interesting remedy.  What disappointed me is that he started to bash other systems of discrimination such as "Legacy Admissions" and then went soft on them (I guess as not to confuse them with authority in a judicial opinion).

I had a very negative opinion of Thomas until I read this Dissent. Now I am on the fence and encourage
everyone to read it objectively and take of your racial blinders.