[A. Serwer]
When TNC first asked me to guest-blog, I thought I was going to be doing a lot more posts on comic books and video games then I ended up doing as a result of everything that's happened this week.. I wrote this post on Wednesday but I've saved it until today because most of my posts this week have been well--dense, and I didn't want to overwhelm the blog with text, but here goes.
There was some discussion over in my previous post on Ricci over the issue of disparate impact and whether it should be considered racism, or whether the government really has any business dealing with it. Commenting on the Ricci case on Wednesday, George Will said this:
The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they "remedy" discrimination that no one has intended). This is the predictable price of failing to simply insist that government cannot take cognizance of race.
The problem with this kind of "colorblindness" is that some of the most pressing issues of justice and equality in this country are the result of policies that are race-neutral on their face but discriminatory in practice. Drug laws for example, including the sentencing disparity between crack and powder cocaine are "race-neutral." You cannot prevent a black child from attending a mostly white public school, but in practice public schools are segregated by race. Laws that take away voting rights from felons do little to discourage crime, but they do disenfranchise thousands of black men. The sub-prime crisis hit minorities harder than it did whites--but loans were ostensibly given based on credit rather than race--yet we know this isn't true. Will would have the government ignore all racial disparities, and therefore shirk all efforts to rectify them through policy, as though this was what MLK had in mind when he spoke of color and character.
I don't see the virtue in simply disregarding these effects in the name of "color-blindness." An ostensibly race-neutral policy that has the same purpose or effect as a flagrantly racist one should be scrutinized, and quite frankly the race neutral veneer on some of these policies is quite easily penetrated. What color-blindness offers is an opportunity to ignore racial disparities while perpetuating the policies that produce them. I agree that racial disparities alone, while important enough to raise an eyebrow, don't necessarily mandate a change in policy. But what happened in the Ricci case was not merely that the written test resulted in racial disparities, but that the city was out of touch with almost two-thirds of other municipalities which use other forms of evaluation that don't result in similar problems and evaluate firefighters more effectively. Likewise, I would argue that the problem with the racial disparity in crack/powder cocaine sentencing isn't just that the law clearly adversely affects blacks and may have been designed to do so, it's that in practice it's swelled the ranks of the incarcerated without providing any tangible benefit to the communities it's meant to protect.
Will's "color-blindness," then, isn't so much blind to race as it is to justice. His preoccupation with the Ricci case alone--I'm hard pressed to think of a time when Will found a modern instance of racial discrimination not directed at white men offensive--implicates Will's tribal sensibilities. Will certainly wanted the court to take into account Ricci's case in order to conclude that he had been discriminated against because he's white, because he gloats about it in his Op-Ed, quoting the relevant portion of Kennedy's opinion in italics.
Also, I'd just like to point out that the impact of affirmative action has been pretty minimal. Black folks are still underrepresented everywhere, the fact that affirmative action based on race (rather than say gender) is of such single minded focus for people like Will undermines claims of "color-blindness."
Moreover, Will's colorblind platitudes would be more convincing if they weren't removed from all historical context. Legalized slavery and segregation were the law in this country for most of its existence, and the latter was strenuously supported by Will's ideological cohorts and predecessors. One can argue that America's obligation, even to people it once exploited, begins and ends with granting them the opportunities it once denied--but it isn't meeting that obligation if it continues to utilize ostensibly "race-neutral" policies that have the same effect as nakedly racist ones. While racial disparities may not be the intended outcome, the decision to actively support such policies, or to turn one's back regardless of the results, is a conscious decision that belies any claim to "color-blindness".
Now, that doesn't mean that all solutions to racial disparities need be race conscious to the level that affirmative action is. I think that there's a strong case to be made for shifting to a class-based system of AA for college admissions, less so for employment or government contracts. Most notably, President Obama has sought to rhetorically frame black issues as "American issues", which is distinct from conservative color-blindness in that it uses advocacy for ostensibly race-neutral policies (universal health care, public teacher accountability) to rectify racial disparities, rather than perpetuate them or turn a blind eye to their perpetuation. (Obama confirmed this in an interview with the AP yesterday.)
There is an important argument to be had over what degree policies meant to rectifiy historical inequalities ought to be race-neutral. There may be much better and more effective ways of dealing with racial disparities that don't offend so many sensibilities, and the erosion of things like affirmative action may force policy makers to think more creatively in this area. But to argue that, for example, the government has no business noticing that 1 in 15 black men is in prison or viewing that as a serious problem after centuries of legalized racial bias isn't--and shouldn't be called--colorblindness. It's racism. It's also the kind of utopian nonsense conservatives usually make fun of liberals for having--as long as the government is run by human beings, it will be subject to prevailing cultural biases. What Will is really saying is he has no problem with that.
The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood 
Yes, there is. But it's easier and more fun to focus on the fact that George Will is a racist idiot, so let's do that.
That sounds a bit harsh, and I really don't mean it to, not exactly. Because there's room for all kinds of posts, Will is obviously an influential person on the far right and thus deified by the pundit-class, and it's important to periodically point out just how empty and insulting his arguments are.
But there are serious and difficult policy issues in the middle of this long post also, such as what exactly should we do about de facto segregation in the schools? These are complex issues that deserve to be measured against the best arguments the opposition has to offer, not the worst. Shooting down the idiots is an important task, but we also shouldn't mistake that for serious thinking.
I understand your point, but it's not like there's much discussion of Will on this blog. Indeed, I think Adam's post qualifies as exactly what you're talking about--periodically pointing out just how empty and insulting his arguments are.
Moreover, in this instance, there's a strong argument that the "best arguments" aren't the ones carrying the day, or the ones that most conservatives are making. I am sympathetic to the idea of not engaging people who are insincere and intellectually dishonest. I preach it myself. But it isn't like those "serious issues" are going undiscussed--just scroll down a post. There's nothing wrong with taking apart the loudest and stupidest arguments.
What I'd say is that there are arguments that are stupid and irrelevant, and arguments that are stupid but come from beliefs that are widely held. I'd describe Will's as the latter.
I don't claim to understand the law at all, but there were two aspects of the Ricci case that made the decision seem like a move in the right direction in policy terms, to my mind:
a. The whole changing-the-rules-in-the-middle aspect of having an objective test, but deciding to ignore the results when you don't like them.
b. The whole notion of selecting less qualified people (based on some measure of merit that you thought was meaningful until you found you didn't like the results) to achieve a desired racial balance.
a. "changing the rules" isn't what happened. The city feared a title VII lawsuit based on the results of the test, and they had good reason to, because over 2/3 of firefighter municipalities had moved to a more effective evaluation process that didn't produce similar results.
b. Again, I take issue with the idea that a multiple choice test is the best way to select firefighters. I could pass a multiple choice test for firefighters if I had time to study, and I wouldn't make a good firefighter. And as I argue in my post above, disparate impact alone is neither a strong enough legal standard for a Title VII claim or necessarily a policy change.
Could you explain why you believe a different method of testing is more effective?
Also, the multiple choice test was not used for selecting firefighters. It was used for selecting among firefighters for officer-level positions. Anyone taking the test is already a firefighter, so all the test measures is "among firefighters, which one knows the most about the physics of fires?"
The implicit assumption is that knowing things like time until building collapse, how sturdy a wood floor is after burning for 8 minutes, etc, is useful for a command level position.
Your argument b. misses the point. It may be true that many people could pass the Lieutenant or Captain exam for the NHFD - people who would not make good firefighters. But everyone actually sitting for the Lt./Capt. exam was already a firefighter employed by the NHFD. They are already good firefighters. The purpose of the test is to determine whether or not they'd be good Lieutenants or good Captains.
Chris and Ninja Zombie,
I think you both make fair points, and I don't think I made mine very well. If you look at Ginsberg's dissent, she points out that Bridgeport and other jurisdictions gave primacy to other forms of evaluation not just because of disparate impact, but because, for example, "the oral component, more so than the written component, ad-dressed the sort of “real-life scenarios” fire officers encoun-ter on the job."
One of the experts interviewed by the city testified that "(“I think a person’s leader-ship skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appro-priate way.”" So while I'd agree that the written exam isn't entirely invalid, people more familiar with testing procedures than I found that the written exam was less relevant than other methods of evaluation.
A. Saying the test was objective is misleading. Tests are made with a purpose in mind. Simply because it is standardized doesn't make them objective because there is no guarantee that the test is the best measurement for what you are looking for; which was the issue. It isn't just that they didn't like the result and therefore tossed the test, it was that after the result they thought if they were sued due to a title VII violation they couldn't prove that this test was the best measurement for promoting firemen and therefore the disparate impact was tolerable.
B. Once again, merit isn't some natural objective category. How you judge merit can differ. Other cities used other methods to promote fire fighters and even fire fighters interviewed said that a paper and pencil test isn't the best way to show who has the potential to good at the jobs they were going for. Also, less qualified people weren't selected. No one was promoted and if the criteria or method for promotion is flawed then your point on merit is moot.
Two things on this.
First, the sort of argument that Will and his ilk generally make to shush observations of racial disparity could be made about New Haven's decision to drop the test: New Haven threw out everyone's test scores, not just the black ones or the white ones. Where's the discrimination?
Second, I'm really curious why no one ever brings up the US military's race-conscious promotion system never comes up in discussions about this stuff. I don't know that it would even be legal in light of Ricci (although the CRA probably doesn't apply to the military). The same case for race-conscious promotion in the military applies to municipal services... especially police and fire departments that have similarly structured hierarchies. You ultimately want the leadership to reflect those that they lead. John McCain routinely calls the military the greatest affirmative action employer in the country.
Lastly, I don't think there's been much discussion of Alito's concurrence on this blog. I guess that's because it's too disgusting to really think too hard about. The misconception that so many American cities are irreparably corrupted by entrenched black power structures is another sort of racism to add to your list.
I'm interested to know about the race-conscious promotion system in the military.
I served 12 years, in 3 branches. I can't comment on the Marines or Army, but the other 3 branches use tests to select enlisted people for advancement. Everyone has access to the same test materials, and takes the same exams.
http://clinton2.nara.gov/WH/EOP/OP/html/aa/aa07.html
I don't think that the policy in bold would be legal for a non-military employer post-Ricci. It's discrimination against white applicants to only give underrepresented applicants a second look.
Thank you for your reply. My question was about enlisted, rather than officer, promotions, in the Navy, Coast Guard, and Air Force. All 3 use a written test. The AF also has a board - roughly equivalent to the oral exam used by NHFD.
Since the written exams ask specific questions about the specific job one is hoping to be promoted to, I wonder what is wrong with this system. Everyone has the same opportunity to study the same materials, and everyone takes the same exam.
I blogged about Alito's race-baiting concurrence over at TAPPED, there are other guest bloggers here and I didn't want to completely occupy the space.
http://www.prospect.org/csnc/blogs/tapped_archive?month=06&year=2009&base_name=notes_from_ricci
http://www.prospect.org/csnc/blogs/tapped_archive?month=06&year=2009&base_name=rebuking_alito
Thanks for the links; sorry to stray off topic a bit.
In my opinion, one of the keys to understanding the conservative mindset is buried in the phrase:
"'race-conscious' actions that somehow are not racial discrimination because they "remedy" discrimination that no one has intended"
(emphasis mine, of course)
It's interesting that for all of their bluster about soft-headed and -hearted liberals, it's actually modern conservatives who focus so much on intention, or what's in someone's heart or soul or whatever. They don't think that a thing is what it does; they think that whatever a thing *says it tries to be*, that's what it is. It's how Bush justified a close relationship with Putin, it's how they can continue to support thrice-married adulterers like Newt Gingrich, and it's how they can pretend that Trent Lott isn't racist - if you don't *intend* something, or if your intentions are good *in your heart*, well then, that's good enough. And Will lays it out again here - what matters isn't how actual people are *affected*, it's how white dudes *feel*. It's actually kind of hysterical.
As for how it applies here...
The whole point of affirmative action to me is that it's specifically *not* about "intention" - it removes individual/personal intention from the equation entirely, and focuses on broad impact. Affirmative action programs should look at a large group of people - say, people applying to be firefighters - and ask, all things being equal, what would we more or less expect to happen? e.g., if black folks aren't facing systemic problems, and they're genuinely on an even keel with white folks, should we expect that none of them will pass this test?
I mean, when that happens, what conclusion do you draw? Like albatross above, do you decide that *every single black person applying was less qualified* to become a firefighter? I dunno - I personally have to assume that somewhere, the game is fixed, and to continue down a path where zero black people meet the qualifications means that we're endorsing it. I think affirmative action is appropriate in cases like this - it's not giving someone an unfair advantage, it's removing barriers.
Anyway, Will thinks: no white people can be proven to have *intended* to discriminate, and so therefore (a) the fact that zero black people qualified can't be because of racism, (b) to take steps to include black people means that you're racist against put-upon white people, and (c) government can't possibly acknowledge the fact of no black people qualifying - it's not relevant. I think this is all kind of silly, but you know, what can I say? I'm a wussy liberal who thinks that critical examination, statistics, science, etc. have meaning. I'm not a tough-minded conservative who wants to know how people feel.
(All this said, the changing-the-rules-in-the-middle aspect is indeed troubling. But I'm looking at this philosophically rather than legally.)
I think there is a very important distinction that is not being made.
George Will and most conservatives (including myself), view these issues from the perspective of individual rights. It can be summarized as follows: every human being has a certain set of rights. It is wrong to violate these rights for any reason.
A. Serwar and many liberals view these issues from the perspective of group rights. Near as I can tell, it can be summarized as follows: certain groups have the right to have certain statistical properties, and individual rights are less important.
(Please, correct me if my summary of the liberal view is incorrect.)
To determine if something is wrong from the perspective of individual rights, you can ONLY look at individual cases: "John raped/robbed/assaulted someone and is now prohibited from voting. Have his rights been violated?" John's race is irrelevant to this question, since all humans have the same rights.
It's truly incorrect to claim that a belief in individual rights is racism. Racism is treating people differently based on their race, which individualism explicitly does not do.
Your leap here is the assumption that there's a fundamental human right to not have anyone notice what color your skin is. And a fundamental human right to not live in a country that tries to catalyze the elimination of racial inequality. There's no fundamental right to colorblindness. Recently, the Supreme Court has moved towards finding a constitutional and statutory right of that nature, but it's absurd to say there's a universal, individual, human right protecting you against living in a country that practices affirmative action.
And, like I said above, your logic works against you here: all humans had the same set of rights in this case -- everyone's test was thrown out regardless of their race.
I didn't make any leap, since I wasn't arguing any specific cases. I was simply pointing out that individualism and racism are fundamentally incompatible.
To address your specific points: I actually don't think there is a fundamental right to have people not notice your skin color. As far as I'm concerned, individuals can do whatever they damn well please.
I do, however, believe there is a fundamental right to have the *government* treat all individual people equally. I didn't realize 1868 was "recently":
I didn't mention Ricci at all. However, on that subject: New Haven did treat individuals unequally. If Frank Ricci scored lower and a black person scored higher, the test would not have been thrown out. I.e., a black person had a different set of rights than Frank Ricci.
Ricci was an interpretation of the Civil Rights Act and did not address equal protection. This makes sense, because a similarly composed court ruled in Gratz v Bollinger that affirmative action (within limits) does not violate the 14th amendment.
You're saying that there's an individual, universal, human right to not have your government practice affirmative action. I'm saying that's ridiculous, and George Will is saying that the government cannot be "race-conscious."
Rights against illegal search and seizure and forced quartering of troops aren't "fundamental human rights" just because they're old.
To answer your question, yes. I do believe there is an individual, universal human right for all people to be treated equally by their government. I understand that you find this principle ridiculous.
Right now, I'm only taking issue with Serwer's claim that this principle is racist. I'm arguing that individualism is fundamentally incompatible with racism. Incidentally, I also agree that there are some fundamental human rights which are not enumerated in the constitution and not historically recognized. But that's also a separate issue.
Surely. And yet conservatives are very selective in whose individual rights they concern themselves with. I did not hear much commentary from George Will when the "individual rights" of Amadou Diallo were violated with deadly results. I have not heard much of an uproar from conservatives, over the past few decades, over the lengthy history of fire departments around this country violating the "individual rights" of black men. What I do hear is conservatives, like David Brooks, frequently inveighing against the climate of identity politics that overtook Princeton in the 70s, while ignoring the rank violation of "individual rights" that characterized the school in previous decades.
It is commendable to be interested in "individual rights." It is intellectually dishonest to claim that mantle, but concern oneself with it only when the violations afflict members of one group.
I don't agree with New Haven and I've said as much--repeatedly. But George Will lives within driving distance of one of the greatest and consistent violators of "individual rights" in the country--the Prince George's County police department. This isn't about a job--it's about murder. When Will concerns himself with the individual rights of his neighbors, I'll take him seriously.
Note: I wasn't defending George Will. He is the idiot who wrote the "Demon Denim" column, in which he criticizes everyone (besides gold miners) who wear jeans. However, I will defend conservatives/individualists in general from one specific criticism.
Violations of the individual rights of whites/asians are condoned by the government. The discrimination is deliberate policy and is not a failure of the system. Individualists make the argument "this is wrong in principle."
Violations of the individual rights of non-asian minorities are generally prohibited by the government and tend to be procedural failures. No one believes that Amadou Diallo should have been shot, it was just a tragic screwup. The only question is logistical: how do we prevent it in the future?
In general, issues of principle get more attention than issues of procedure. Another example unrelated to race: everyone has an opinion on abortion. Until very recently, no one cared about banking regulation. One is a matter of principle, the other just a procedural matter.
(Also, I'm not defending all conservatives. Some are genuinely racist. I'm just defending the philosophy of individualism.)
You must understand the credibility problem here. I have never known conservatives, in general, to be outstanding defenders of the individual rights of blacks. Indeed, conservatives actively opposed efforts to protect the individual rights of blacks in the South. The effects of the efforts to deny blacks of their individual rights are with us to this day. Conservatives weren't interested in protecting the individual rights of blacks in the past, and they aren't interested in dealing with the results of the denial. Indeed, conservatives were interested in allowing the continued violation of the individual rights of blacks in the past, and are now concerned--almost exclusively--with the individual rights of non-blacks.
This is a strange disconnect--conservatives, as I've said, resent the identity politics of the 70s, but don't resent the discrimination which fueled that era. On your point of "procedural failures," again, I heard very few conservative voices contributing to the preventing future incidents. To the contrary, what I heard was defense of the cops.
TNC -- it took me a little bit to figure out what bothered me about this comment, but I think this is it: You're attacking the motivation for the argument rather than the argument itself. And by doing so, you're (intentionally or not) leaving the implication that anyone who makes the argument is coming from that same motivation.
That's frustrating because being identified with 'conservatives [who] weren't interested in protecting the individual rights of blacks in the past' just shuts down discussion.
I think that what you're defending is ineffectiveness. Principles are a dime a dozen if there are no procedures to back them up.
We prevent it by setting up policies that actually have teeth - that look back at their real-life implications, take feedback and adjust accordingly. If the Diallo shooting was a tragic mistake, it may well be true that the officers should not be held criminally responsible, but I want to know what specific changes will be made in the police training and procedures to prevent this from happening again, and I will want to know some time down the road how they worked. If they didn't work well enough, reexamine and adjust them, then repeat until there is actual demonstrated progress.
Please demonstrate how, in any way, this is true. I have been accused, at least twice, on this blog of posting something that was sexist. Does that mean that I now am "shut down" from discussing gender? People calling you on your shit is what happens in argument. If your genuine and humble in your beliefs, than you accept the challenge and see where it takes you.
For the record, the point isn't that conservatives have no right to talk about individual rights. The point is that if you're going to enter into a discussion defining the "conservative" position on individual rights, and the "liberal" position on individual rights, which is exactly what the OP did, then it's worth looking at the history. The David Brooks point isn't even history--it's last month.
The notion that history should be tossed out the window, is easily proffered when the history doesn't reflect that well on you. The honest thing to do is to admit where you've gone wrong, and push the ball forward. The OP argues that conservatives are interested in individual rights. I offer up history to show that they've often been interested in the individual rights of certain people. I'm sorry that frustrates you.
Here's the problem -- you're treating conservatives as a monolithic bloc who can be held accountable for past sins, like anyone who takes an individualist view is somehow responsible for George Wallace. History doesn't reflect on me at all; I wasn't even born then.
I don't want to speak for TNZ in interpreting his his OP, but he said that conservatives 'are' interested in individual rights, not that anyone who's ever been labeled conservative was always interested in individual rights.
Hi, NZ here. Actually, TNC shut down discussion not by calling me a racist, but by blocking my posts.
My response is probably lost forever (I'm sure this will be gone soon too), but I basically clarified my position. As I said in the post TNC responded to:
Then I clarified this, while admitting that some conservatives are not true individualists. Finally I followed up with an Ayn Rand quote (a true conservative individualist) from 1963 decrying racism, Jim Crow, and quotas.
But TNC doesn't seem to want discussion of the issue, so I guess I'll drop it.
NZ here again.
TNC said this:
In my original post, I said "most conservatives". In my second post I clarified my position. I specifically said this:
My original post was sloppy. I should have been more careful to distinguish between, on the one hand, genuine conservative individualists and on the other hand, old school racists (Nixon) and social conservatives masquerading as capitalists (Bush). My apologies for the lack of clarity.
NZ here.
I'm not defending ineffectiveness, I'm simply pointing out that ineffectiveness is less exciting than deliberate harm. We should do everything you said. I agree. What's left to discuss? Specific procedures?
With all due respect, that is unfair and cheap. People who are banned/deleted are informed. If you're having trouble getting your comments through, send me an e-mail. I take great pride in being responsive to comments, and to e-mails.
If this sounds harsh it because the suggestion of censorship is a serious one which goes to the core integrity of this blog. Please don't make accusations like that without even attempting to see if they're true.
I mean you know offense. But I'd request, at least, a cursory e-mail before assuming that I'm blocking you.
Basically, yes. Not that it should be done here - I'd be way out of my depth, either on Diallo or on Ricci. But I think that many such cases hinge on a detailed knowledge and understanding of the specifics, and not so much on general principles. That's certainly true of Ricci. It's very easy to get caught up in long discussions of principles without any of it making a slightest difference at the ground level. That's why it's often to the conservatives' advantage to shift the discussion from the specifics to the principles - I'm using "conservative" to mean "interested in maintaining the status quo."
It's true that ineffectiveness does not generate the same emotional response as deliberate harm. That's why there needs to be a systemic and procedural mechanism to address historical inequities. Because regular people are busy going about their lives and don't have the time or energy to get all worked up about issues that they don't know all that well.
This is probably way off topic already...
TNC, in response to your post at 1:23PM, I wrote a response. After I clicked submit, I was told the post is being held for your approval. So far, still being held.
If something weird happened, I would have just waited a few minutes and reposted if it didn't show.
This isn't the first time this has happened either. The same thing happened after you threatened to block me for contrasting vietnamese to african americans.
Your comment was almost certainly blocked because of the e-mail addy you used, which was likely flagged as suspicious. It likely flipped the spam filter. I sent you a note, to the e-mail your using now, informing you of this.
For the record, when you see that message, it means you've tipped the spam filter.
"I have never known conservatives, in general, to be outstanding defenders of the individual rights of blacks."
Do abolition and the Civil War count?
Or, for that matter, all the Republicans who voted for Civil Rights in 1964? Or Republicans such as Everett Dirksen?
Also, posts with links are flagged as possible spam and held for approval, I believe.
Ironically, I'm pretty liberal but I think it's the conservative position you've misstated here. Or rather, there's two things going on here and it's important to consider them separately.
Reasonable people on both sides generally agree that actions or laws can be race-neutral on their face but in practice mask racism. Yick Wo is the classic Supreme Court case on that if you want to see a obvious example. The South's grandfather clauses were another obvious example of something that was race-neutral on its face but if you looked at the pattern, was obviously racist. Also, you always need to look at a pattern of cases to see issues like selective enforcement.
I'd say most conservatives have no disagreement with any of that. The difference between right and left here isn't directly philosophical as much as practical: it rests on burden of proof, weight of evidence, relevance of various factors, etc.
Now, there's another group of arguments that is more about group vs. individual rights, but there's a very strong tendency for the left not to make those arguments anymore. Note that the post above isn't really about affirmative action per se, it's about what evidence beyond disparate impact is needed to show discrimination. In fact, I haven't heard anyone on the left try to defend Ricci on traditional affirmative action grounds of "wiping away the scars of centuries." I honestly have no idea how widespread support for that is on the left right now.
your summary of the liberal view is incorrect to this liberal.
I don't think groups really have any rights, except to be self-governing- sovereignty of nations, states, counties, etc, and the rights of the Rotary club, the boy scouts of America, the Catholic church, etc., to run their business as they please within limits.
Individuals do have the right to equal protection before the law, and in the case of employment law, the right to consideration for employment regardless of their race.
In a case where the system looks fair on the surface, but it "just so happens" that everyone who wins employment is white, even though the applicant pool is quite mixed, there's discrimination going on.
To me, it's not that "non-whites" as a group are being discriminated against. It's that the result shows that some non-whites were individually discriminated against. Perhaps that discrimination was not located at the written exam they took, but it took place none the less. Sometimes it's easier to locate the undeserving whites who were unfairly promoted, sometimes it's easier to locate the specific standout non-whites who weren't promoted, but often, it's easier to look at both groups and just stay "discrimination happened here". That discrimination is a violation of individual rights even if you don't locate the specific individuals who suffered from it.
Think about it this way: let's say the boss's nephew gets promoted even though he's dimwit and a chump, because he's the boss's nephew. Who is wronged by that? It could be many people. It might be the one person who would have been promoted instead; but that person would have vacated a rank-and-file position, if she were promoted, and the person who doesn't get the rank-and-file position, because it wasn't vacated, is also harmed. Everyone who has to serve under the nephew-chump is harmed, because they don't get good leadership, and they probably can't shine within the organization as much, because they're being led by a chump. The whole organization is harmed, because everyone can see that merit isn't what's rewarded around here, it's being related to the boss. You could say all those individuals' rights have been violated; or you could use a shorthand and call it the group. But it's the individual's rights that are important.
In a case where corrective affirmative action is needed, minorities and women are discriminated against in every hiring decision. Their rights are violated every time. You institute an affirmative action program, and when a highly-qualified applicant who is a white man applies, he may have his rights violated because a non-white who is equally qualified will always be hired first. But the reason the program exists is that the minority and women applicants are ALWAYS discriminated against. It is a violation of individual rights. But it replaces many instances of discrimination with a few. It's a reduction in rights-violations. It would be nice if we could have a world in which no one is unfairly discriminated against. But because employment decisions are one-to-many, any remedy for our current discriminating world is going to be unfair to someone. It will be just unfair to fewer people than it was before, which I call an improvement for individual rights.
I can't speak for every liberal, but I don't remember hearing liberals speak of "group rights". What we are concerned-with might be called "group measures"---any individual case may have any number of important factors beside race at work, but 'racial equality' is a statement about groups and their statistics. I take it to mean that if a racial group's members are doing much worse on average within a given field, there must be either discrimination or racially-associated cultural artifacts that need addressing by eliminating or making-up-for, respectively.
For example, if a group seems deficient in successful entrepreneurs, there might be discrimination against their entrepreneurs...or they may be suffering the after-effects of a period in which their successful entrepreneurs were quashed by a combination of governmental interference and mob violence (allowed and abetted by local governments)---they might have been taught Homer Simpson's great Lesson, 'You can't get anywhere, so there's no sense trying,' which will need to be untaught.
Finally: the original poster's mention of Martin King makes me want to repeat what needs to be repeated every time this argument came up---not as an appeal to Authority, but to keep the record straight: despite his vision of an eventually colour-blind society, King supported government and corporate actions favourable to black people in order to make up for generations of special treatment against their ancestors. (Why do ancestors count? Not because of 'group rights', but because [again] of lessons taught: learning about what your ancestors do helps to define the limits of your dreams. I knew that among my ancestors were men considered in their field to be among the greatest scholars of their generation, and that told me I at least ought to try...if I'd been taught that my ancestors had never amounted to much, and that every time they'd tried to do they'd been pushed down...well, maybe I would have decided that an adolescence spent stoned and screwing would have been a very good idea.)
I'm glad the Supreme Court decided Ricci the way it did, primarily because I think the firefighters that followed the rules in place at the time should be rewarded for successful performance under the terms of those rules. Everyone who took the test was told the top scorers would be promoted, and the top scorers should be promoted. This time.
That doesn't mean New Haven has to use the same test, or any test, next time. They can tweak the process or change it for a different one if they want to. And if they do test, I'm very much in favor of making sure all firefighters have access to the best test prep materials and time to do the necessary work. If there is already an organization of black firefighters, it seems that test prep might be one service it could provide for its members.
I happen to think that employers shouldn't abandon testing entirely, especially not for more subjective measures of traits like "leadership." Objective testing can be very helpful to "outsider" candidates, and especially to introverts (who may not seem enthusiastic in first interviews and may wash out of a process that relies on subjective first impressions). Lots of people have used objective testing as a ladder up, because it gives them an area where they can compete with the people who have letters of recommendation from connected insiders. I don't know why black people, or at least the more vocal ones who speak to the media, have been reluctant to play this game. It has worked well for every outsider group that has tried it so far.
M.C., you make a crucial, too often unconsidered point in your middle paragraph. If people aren't willfully blind on the issue (as I believe Will to be) they need, productively, to avoid being driven to extremes in their positioning. I believe the case against the New Haven test was weak. It's certainly arguable. Why should individual lives and careers be sacrificed to a policy dispute? Not only could a different test be used next time, but New Haven could actively address the issue in other manners: for instance, why not offer a retirement incentive to older officers (almost all of whom are white) to open still more positions? Then one of these arguably superior testing methods could be used, producing, perhaps, the more desired result. It costs the city money, maybe (the newer officers would be at lower salary levels), but the cost of corrective social policies should be borne by society, not through the sacrifice of individuals.
"What color-blindness offers is an opportunity to ignore racial disparities while perpetuating the policies that produce them. I agree that racial disparities alone, while important enough to raise an eyebrow, don't necessarily mandate a change in policy. But what happened in the Ricci case was not merely that the written test resulted in racial disparities, but that the city was out of touch with almost two-thirds of other municipalities which use other forms of evaluation that don't result in similar problems and evaluate firefighters more effectively. "
What policies at the NHFD are producing racial disparities in test taking? What are these other forms of evaluation? How are they more effective?
Ricci is not a case of discrimination in hiring. All the test takers were already members of the NHFD. They were sitting for the Lieutenant or Captain exams. Arguably it's a case of preferential promotion, but it's a hard case to make as all members had the same study materials, and were given the same exam.
Presumably the exam asks technical questions about firefighting and since it was a test for an officer position, questions about the command/control structure of the FD, proper procedure for the officer in charge, and so on in that vein.
Just because there was a racially disparate result dose not mean there was a deliberate attempt to promote whites in preference to minorities.
But the test was necessary for the job in question. Surely the test helps determine who knows the subject matter tested, and who does not.
There is nothing wrong with precedent being overturned - if not for that, Plessy would still be good law.
I would encourage those of you who are wondering what was wrong with the test to read Ginsberg's dissent or my post responding to the ruling.
http://ta-nehisicoates.theatlantic.com/archives/2009/06/thoughts_on_the_ricci_case.php
I didn't say it was wrong.
Since you mentioned the Plessy decision, I really hope that people will bring up the majority opinion when Sotomayor's confirmation hearings begin. Specifically:
I don't think that Justice Brown, had he had the richness of the experiences of segregation, could write this. And I think Justice Brown's words are interchangable with Will's argument:
One thing that confuses me concerning policies that are "race-neutral on their face but discriminatory in practice"...
Isn't the central question here "why" they are discriminatory in practice. Given all the attention of the Ricci case, I've still seen very little information about the specific nature of the test and why it produced the results that it did.
This question of causality is central because if you think the test should be thrown out, you almost certainly believe that the test was somehow unfair. If you think the test should not be thrown out, you believe the test was fair and the reason blacks did not qualify is because they (for some unknown reason) were not sufficiently prepared for the test.
If the policy was to throw out ANY test that was discriminatory in practice, then wouldn't we have to throw out almost all tests because most tests would show come groups to do better than others for all sorts of reasons.
The thing often missing in the discourse is the understanding of the other side's position. People who think the test was fair have a hard time understanding how it might have been racially biased, and people who think it was unfair have a hard time believing that the applicants may not have been as prepared as they could have been.
I think you should read Ginsburg's dissent. It addresses these questions.
I haven't seen anybody seriously make the argument that the test itself was racially discriminatory. Rather, there is some evidence that the administration of the test was discriminatory in terms of access to study materials, access to past tests, etc. (as Alchemy said, Ginsburg dissent has the details). Some people find that evidence convincing, some do not.
Now, if I found that evidence of unfairness more convincing, then absolutely I would agree that New Haven did the right thing in throwing out the test. I think that's true of most people (especially here) on my side of this particular argument.
I'm not sure if that's true on the other side. If there were no evidence of direct discrimination, would the disparate impact and questionable relevance still be enough to throw out the test results?
sly20:
A: I think the interesting question here is what would be good policy. Is it good policy to announce "here is how we will decide whom to promote," and then change that policy when you don't like who was getting promoted? That seems like policy that's almost optimized to increase racial tensions and mess up any kind of cohesion in the organization.
B: If we had a real, objective measure that really did predict how well the person would perform in the job, but that measure led to no blacks being promoted, should we ignore that measure in some cases to get a different racial mix in the promotions?
I think (B) is the fundamental moral or philosophical question of affirmative action. (The question is muddied in practice, since we don't usually have perfect tests or performance measures.)
How do we balance between fairness to individuals (the same rules/criteria apply to everyone), group fairness (black firemen have the same probability of getting promoted as white firemen, the ethnic mix of Harvard students reflects the ethnic mix of the US or Boston or something), and optimal outcomes (the best people get hired as firefighters, the best people get into medical school and become doctors, etc.)?
A. I think you are still confusing the issue. It wasn't simply that they didn't like the result. They thought they could get sued and if they were that the test they used wouldn't hold up as being necessary and therefore having the disparate impact an unfortunate but tolerable outcome. The civil service board came to the conclusion that the test wasn't the best way to decide who could do the job well so they didn't certify the test. If they were confident in their method of selection, and confident that they could win a lawsuit then this may not have been an issue.
B. But there are black people that rise in the ranks, so how could a test that is truly objective manage to disqualify a group of people who have shown capable of doing the job? That's not logical. And this is about individual fairness. It seems to me that people who never question what goes into "merit" evaluations are those who benefit from assumptions of merit. If you come from generations of fire fighters that is an advantage. If you have access to materials because of these relationships whereas those who are first generation fire fighters don't, that's an advantage. Simply because they took a test doesn't mean the test didn't benefit people with a lot of individual advantages, the problem is that those individual advantages were allowed to accumulate to certain groups due to past policies.
"They thought they could get sued and if they were that the test they used wouldn't hold up as being necessary and therefore having the disparate impact an unfortunate but tolerable outcome. The civil service board came to the conclusion that the test wasn't the best way to decide who could do the job well so they didn't certify the test."
This is specifically not accurate, because if they had found that the test itself was inadequately linked to performance Ricci would have had no case. If they had found that the test itself was racially discriminatory, Ricci wouldn't have been able to sue. The whole problem was that they didn't find either of those things. They threw out the test without doing that. If you read the expert testimony before the CSB, you constantly hear the expert saying things about how he didn't find anything wrong with the specific questions or anything wrong the test itself. And that was why it ended up being discriminatory against those who did well on the test.
Albatross:
You wrote, "the best people get hired as firefighters, the best people get into medical school and become doctors, etc.)?" Which raises a very interesting question...
I think others have also raised this point and it dovetails with comments we've heard and read about the current SCOTUS nominee, but the basic question that I see is:
What do we mean by "best?"
It doesn't seem like we mean "able to do the job at a satisfactory level" but I don't know what the "best" firefighter is. My cousin is a pretty good one, but he's pretty good at particular aspects of the job (truck driving and chemical fires) while not being so great at fire-prevention and definitely isn't the guy you want carrying your hose up the stairs ever since he broke his neck. He says that's usually the way it works...
Similarly, I'm a teacher. Am I the best? I doubt it. I'm really good at a couple things, not great at a few others, and acceptable at most. I don't know a single teacher who is consistently excellent at everything and therefor picking the "best" teacher at my school would be a huge argument about what we think is most important.
My wife works in the med-school admission pipeline... She sees candidates with perfect grades and MCAT scores. Does that make them the best candidate for med school? Not necessarily. Some of those folks have no interpersonal skills and thus, bedside manner would be something of a joke.
In hiring I've always tried to pick a candidate pool that I thought had the right balance of skills to make 'good' practitioners, but, rhetoric aside, I've never had a way to pick out who will be "the best" at a job that they've never done before. Maybe a standardized test can give some insight into that, maybe it can't.
It seems that besides asking how we balance fairness to individuals and group fairness we need to confront the notion that the US functions solely as a meritocracy where 'the best' are the ones that are promoted. We don't agree on what 'the best' is and we don't have a way to identify who will be 'the best' at something they've never done.
Missing from this discussion is the point made in Ginsburg's dissent: The city of New Haven did not feel that it could prove that the test was relevant to the promotion.
Let that sink in. We give this killer test for promotion, but we can't prove that the ability to perform on the test is at all relevant to the job that performing well on the test qualifies you to apply for.
It's crazy. It's like having firefighters compete on who can write the best poems about firefighting. And the winner gets the promotion.
Adam Serwer
I've read the post you linked to. I do find it persuasive.
First, $500 is the same for each firefighter. They all are at the same pay scale until they get promoted (allowing for the possibility of higher pay for higher longevity) so the "tax" is equal regardless of race.
If I were a white firefighter I would not rely on dated test materials from relatives. If one is taking promotion seriously, one gets the most up to date materials. Thus, the cost is $500 for everyone taking it seriously.
You state that other cities emphasize the oral part of the exam, not because reliance on written exams tends to produce racial disparities, but because reliance on the written exam privileges qualities not vital to being a good firefighter. Yet, you do not go on to detail exactly how reliance on the written exams favors such non-vital qualities, or what those non-vital qualities are. I'm afraid just making the claim is insufficient. I would like to know what's on the written exam that is not vital?
Your contention that you could pass the exam is pure conjecture (the overall pass rate suggests it's a tough exam) and even if you could pass it, your further contention that you'd be a "shitty" (your term, not mine) firefighter because you are 5'6" is a red hering for at least two reasons; One, there are many firefighters approximately your size around the nation. Two, the people sitting for the exams in question already are firefighters.
You state that Bridgeport has found the oral exam to better represent the scenarios a firefighter will find himself in. Perhaps so, but the issue isn't whether the NHFD test is the best of all possible tests. The issue is whether it is job related, and the USSC, majority, didn't seem to have a problem with the notion that it is job related.
It's not at all clear that the portion of the exam based on NYC's test produces a disadvantage for minorities. One, because everyone willing to spend their $500 on study materials (and remember, all applicants are already paid members of the NHFD) has access, and Two, because NH may use some of the same procedures and equipment that NYC does.
You state that"rote memorization" is not a quality you'd look for in a firefighter. Of course, you don't state what criteria you would look for. Your statement slyly implies that either the firefighters who passed can't actually think on their feet - relying only on rote memorization, or that substantive knowledge of firefighting principles (assuming that is what was being tested) isn't something important in a Captain or Lieutenant.
Chris23, well done. With all respect to Adam, he appears to be doing what large numbers of people have done in their consideration of this case, including all nine justices - they are shaping arguments to support beliefs (conclusions) they already hold. I read the briefs in the case: I found the respondent's argument against the quality of the test completely unpersuasive, even ridiculous at times - and if I'd been persuaded I would have been all for overturning the results. Of course, too, the city took its position on the test only after it feared legal action. Adam's argument seems no less strained to me.
With regard to the part of the test drawn from NYC procedure, there is no inherent reason - certainly not one established in this case - why these elements would be prejudicial to any segment of the test takers, when all were non-New Yorkers. (The respondent's brief actually uses as an example of an unfair question one that refers to "uptown" and "downtown" when there is, apparently, no such in New Haven.)
Regarding rote memorization, I argue that it is, indeed, one of a range of intellectual capacities that a person in a position of leadership should possess - particularly a job requiring extensive scientific, technical, and procedural knowledge.
Finally, to return my comments to the human level that should never be abandoned, read, if you haven't, today's New York Times on Ben Vargas, the Puerto Rican firefighter who was part of the suit and whose whole career with the New Haven Fire Department has been shaped for over twenty years by these kinds of suits.
While the ideological arguments against AA that they replace one kind of racism with another derives from apocraphal not statistical evidence and is really a straw man argument, albeit persuasive to a wide swath of our populace, the real issue is how do inequities get addressed. My real sense is in two ways: first and formost intensive mentoring, counseling, and tutoring programs--that engage college students in their execution, ie education, and investment in neighborhod job development of the green industry variety among those populations in the US that currently are getting the short end of the stick. Education is the easiest sell of AA and the one with biggest long term payoff. And then we need new green Detroits; getting in on the ground floor will change things. Finally, the basic idea of AA programs is to work themselves out of necessity, so regular and periodic review must be written into them to avoid the sense that these are merely entitlement bureacracies.
Its hard to read this post and not think immediately of France. Unlike the United States, Britain, or even the Netherlands, France maintains a "color-blind" model of public policy. This means that it targets virtually no policies directly at racial or ethnic groups. Instead, it uses geographic or class criteria to address issues of social inequalities.
The french government is so devoted to the idea of color-blindness that it has no system to monitor race in france. Thus french citizens have no idea what percentage of their country is black, what pecentage of blacks/maghrebis are employed in certain positions or have different health risks or a way to monitor racial profiling/arrests. Being stripped of the basic facts of their existence, the french do not have the same awareness of race and the true costs of discrimination. Which means that it is even less prepared than the US to deal with them.
Back to the individual rights thing, but with a twist...
I'm solidly in the individual rights camp, which is part of why I take the position that I do on Ricci. I don't actually think there is such a thing as group rights, and I see all sorts of problems with arguments that do assert group rights. For one thing, they often come down to assertions that the powerful members of Group X get to do all sorts of things to the non-powerful members of that same group. As a woman, I see where that sort of thing may lead, and I want to make sure that the state recognizes my individual rights when they conflict with those of men who look like me -- or even who are related to me.
Taking that as a starting point, I do think the strict individual rights perspective has to be tempered in two ways in order to promote human dignity. First, individual social mobility (as opposed to group proportional representation) has to be promoted for talented individuals from every background. Talent can come from anywhere, and we should be doing more to find it and encourage it when it appears in families that aren't already well off or connected. Over time, individual career mobility should reduce group differences, as indeed it seems to be doing.
Second, even people who are never going to be all that socially mobile should be treated better by society, in the workplace and in other institutions. Some people may be perfectly good firefighters but lack the qualities (or ambition) it takes to be promoted to the officer ranks. There's an ugly streak in American culture that denigrates these people, that places a disproportionate value on bosses and not nearly enough value on skilled people who do the front-line work and intend to continue doing it. By "value" I do mean pay to some extent, but also things like social respect.
I assume, then, that you're in favor of revoking the 15th Amendment?
This individual vs. group rights thing that's been mentioned here a few times is pretty bizarre in relation to the Ricci case since there's no issue of preferences here, the black group is claiming there was actual racial discrimination. I don't think the evidence is in their favor, but that's a difference about the weight of evidence. Are you, and Ninja above, honestly making the claim that the government should not ban racial discrimination? That's way past what George Will was saying.
I realize there's the sort of pure libertarian viewpoint out there that states that segregation should be legal, but it's pretty far out of the mainstream. And, in fact, in this case we're dealing with government hiring, and even most pure libertarians don't think it's ok for the government to discriminate based on race.
The individualist position is mostly orthogonal (by itself) to racial discrimination.
If you supplement individualism with, e.g., a belief that all individuals have the right to equal treatment by the government (which I do happen to believe), then this implies the government may not discriminate.
Returning to the case of Ricci, the government did in fact discriminate. By their own admission, the test was discarded because too many whites/hispanics passed. I.e., if one of the people passing it were black, the test would have been kept. That's blatant race discrimination, i.e. acting differently depending on race.
Incidentally, the 15'th amendment secures an individual right to vote. Why would individualists oppose that?
. By their own admission, the test was discarded because too many whites/hispanics passed. I.e., if one of the people passing it were black, the test would have been kept.
That's simply false, the city admitted no such thing. The city's position was that the administration of the test was both racially discriminatory and not necessarily consistent with business necessity, and thus could not be certified. Neither the court majority nor myself found this argument credible, but that was their argument. At this point in time you must know this, so I'm really curious why you would write something like the above.
The 15th Amendment limits the grounds on which the right to vote may be denied. It may not be denied due to race, although it may still be denied for all sorts of other reasons. Likewise, Title VII states a fireman's promotion may be denied for all sorts of reasons, but may not be denied due to race. That's why I brought it up.
This case was about whether the original test denied promotions on the basis of race. The court majority agreed that if the test had done that, there was no question it should be thrown out, but disagreed with the rules of evidence and burden of proof the district court had applied. The "individual rights" argument you're making here seems to place you considerably to the right of Scalia and Thomas, not to mention the first J. Harlan.
Which, of course, you might be.
Likewise, I would argue that the problem with the racial disparity in crack/powder cocaine sentencing isn't just that the law clearly adversely affects blacks and may have been designed to do so, it's that in practice it's swelled the ranks of the incarcerated without providing any tangible benefit to the communities it's meant to protect.
This simply isn't true. Jesse Jackson's 1988 presidential campaign was widely regarded as the reason for the increased emphasis on drug policy in the late 80s. (Cite.) It was around that same time that states started implementing tougher policies for crack, which was considered a real scourge (Cite.) Note the complete lack of Jackson or Sharpton squawking about the increased penalties in contemporaneous reports. It's only in the mid-90s that the two of them began using the increased penalties as a racebaiting issue. Up to that point, everyone--including, from what I can tell, African Americans--passionately believed that crack should be handled differently from cocaine.
"Again, I take issue with the idea that a multiple choice test is the best way to select firefighters. "
You've already been corrected on this, but I believe you have made this error several times in previous posts. The error is revealing; you don't appear to see much difference between a firefighter and a leader of firefighters, with considerably increased responsibility.
I did not hear much commentary from George Will when the "individual rights" of Amadou Diallo were violated with deadly results.
First, do you absolutely know that to be true, or are you saying it for rhetorical effect? That is, are you absolutely certain that Will has never mentioned Diallo? You checked? I'm just curious if you know this for a fact.
Second, Diallo is relevant here only if there's no difference between government approval of discriminatory hiring actions and a split second decision that turned out tragically wrong. To say nothing of the fact that the four officers were tried for second degree murder precisely because the government and the people recognized that Diallo's rights were violated and that the officers may have been critically responsible. (A mixed race jury decided otherwise.)
I realize that many African Americans feel that affirmative action is the yin to the yang of increased burden in other aspects of life (including increased and often dangerous scrutiny by cops) and in fact, that may be the best rationale for intentional discrimination against whites and Asians. But the law, alas, is not written with that sort of balancing act in mind.
A quick Google search finds no George Will mention of Diallo, but there is a typically execrable Ann Coulter column out there:
...
The statistics suggest that, if anything, New York cops are gun-shy. The police force in Washington, D.C. -- which is almost entirely black -- is responsible for five times the number of civilian shootings per capita as the New York City Police Department. Civilian shootings by the NYPD averaged 63 per year in the '70s. Last year the number was 11 -- one of whom happened to be Amadou Diallo.
The police force in DC is 66% black, by the way, and DC's a majority black city. I guess that's too much for Ann.
Sorry the quote got messed up. As it turns out, I spoke too soon. George Will was in a roundtable discussion of the shooting on This Week. Here's a synopsis (can probably dig up a transcript on Lexis or something):
So, yeah, TNC was totally wrong that George Will didn't comment on the shooting, but his comments prove the point anyway. Why are people mad about an accidental shooting stemming from racial profiling when aggressive policing is so good for the community?
To be clear, I wasn't asserting that Will hadn't commented one way or another. I was just pretty sure that TNC hadn't actually checked and I think people should check if they are making those sort of claims.
Of course, Will does appear to be approaching the case from a group rights perspective, although perhaps not the one desired by his naysayers.
Why are people mad about an accidental shooting stemming from racial profiling when aggressive policing is so good for the community?
Why is Diallo called a racial profiling case? As I understood it, the cops thought he resembled a serial rapist they were looking for, and stopped him. They shot him because they thought he was reaching for a gun, when in fact he was reaching for his wallet. They had very little time to react. If "racial profiling" the word for a split second decision in which a cop has to decide, in a high crime area, whether a black man is reaching for a gun instead of a wallet while ignoring (as they understood it) a command?
It's bad enough the man was killed, but does it have to be turned into more than it was? Or am I missing a fact that shows the police were using racial profiling?
In any case, I believe Will was not dismissing the killing, but rather pointing out that a more aggressive police force that resulted in Diallo being stopped and questioned and chased had benefits for the whole community. That the solution--less aggressive policing--would result in fewer police deaths but also more community deaths.
@Cal
I'm not very PC, but that's textbook profiling. I don't think the police officers ever made a case that he somehow fit a detailed description of the suspect. Given the number of defenses of the police officers all over the Internet, I'd expect to see a picture showing how much Diallo looks like Isaac Jones (who was convicted for the crime) if that were the case.
Well, yeah, as a regular reader of the Post, I was going on memory. But, that's not the point--the sentence doesn't say Will never commented on Diallo.
For the record, It is simply amazing to me that people who claim to be about individual rights continually downplay, and aren't really educated, on police brutality. There are notable exceptions--Radley Balko, for instance.
Like I've repeatedly said, I think New Haven is wrong. But From claiming that I've called people racist to arguing that I've blocked comments, I don't think there's much honest commentary in this thread from people complaining about "individual rights." I don't take it very seriously.
I think if we're all clear-eyed about it, we have to recognize that, historically, the generally conservative champions of individual rights, when it came to the subject of racial and ethnic civil rights, have too often been insensitive to those civil rights, if not actually, disingenuously using a concern for individual rights (and "state's rights") as a cover for a hostility to social progress in civil rights. I think it is equally true that the left, from far to merely liberal, because of its commitment to government-level social policy and action, has had a tendency rationalize the effects on individual lives because of ideological belief in those grander schemes.
Still, those are generalizations. They don't diminish a true concern for individual rights or the legitimacy of, and need for, policies that act to correct social ills. There doesn't need to be this polarized opposition. If you're interested, I've written more on the case here and here.
Wait, but those phrases mean two different things. It's the difference between saying nothing at all, and saying something, between completely ignoring and addressing. I phrased it that way on purpose. If I meant "none at all" I would have wrote it. In point of fact, I never contended that Will didn't write about Diallo. That's the fact. You can't ask me to defend something that I did not claim. You can't blur what I said, in order to make it easier to fit your argument. It ducks the hard work of making an argument.
Lastly, if you scroll through the archives and you will see many energetic debates among lefties, like me, and my fellow liberal readers on how involved government should be. All you need do is look at the Ricci thread to see that. We are grappling with history and policy, right here. I believe that to be our responsibility as thinkers--to be serious, sober-minded, and not duck uncomfortable truths, like the ones presented in this Ricci case.
That is our responsibility--just as the bad faith of those who claim Diallo's death was a mere procedural error is there's. You have to sleep at night. You have to balance your prejudiced invocation of "individual rights." I have to work hard to not let my own prejudices control me, not to let my own views become select and dishonest. My work is to not become the left-wing mirror of those who talk individual rights, only when the individuals look like them. You have your laundry to do. And I have mine.
I just posted about this elsewhere, but tucked away on p. A-20 of Friday's New York Times was a profile of Lieutenant Ben Vargas (pictured above, with his wife and one of his sons), the lone Hispanic fireman among the 18 plaintiffs in the Ricci case. Below are a couple of excerpts:
Because the street crimes unit, who shot him, was basically the racial profiling unit of the department. Their basic procedure was to stop-and-frisk people for no real reason in order to get guns off the street, and these stops were overwhelmingly against people of color and very seldom resulted in arrest. Records show 20-30000 stops a year for a 300 person unit, but everyone admits the numbers were much higher because accurate records weren't kept. Their standard procedure was to do what they did in the Diallo case: swoop in, leap out of a car in plainclothes, often guns drawn, screaming at someone.
It was a situation that was destined to end in tragedy, and it did. And you really can't separate the Diallo case from the unit's regular work. One of the cops thought maybe he looked like the rapist, but it wasn't a serious identification and there was no reason to immediately escalate the incident to confrontation. Most cops would have just walked up to him and asked for ID, but that's not how the SCU worked.
If you're picturing regular cops going through the neighborhood looking for a rapist, that's just not what happened. Harassing people of color is what the SCU did daily.
I don't think there's much honest commentary in this thread from people complaining about "individual rights."
You appear to be referring to me, but I don't believe I've stated my own beliefs in this debate. My objections here were on the facts.
1) I was calling you out on your statement about Will.
2) I was correcting history about the disparate drug laws.
As a separate issue, I was bothered by your rhetorical equation of individual rights and Diallo. You really shouldn't infer anything about my own views from that. Plenty of people could feel affirmative action is acceptable and yet be offended by your statement. My statement about what the law intends is also accurate, I believe, in that it, too, rejects your equation of New Haven and Diallo.
As for racial profiling--the cops didn't stop Diallo simply because he was black, did they? He bore a resemblance to a suspected rapist. Unless they were questioning every black man purely on the basis of race, then I don't think that meets the criteria.
The racial profiling, such as it was, occurred when they blasted away at a black man who reached into his coat when they might hold off from blasting away at a white man doing the same thing. The problem is that this was a split second decision that can't really fall under the rubric. It's that fundamental unfairness that TNC was getting at with his equation.
TNC, I don't know who your argument was with, above, to my last comment, but it wasn't with me. I wrote, mostly, in response to this comment of yours:
I thought the comment was unfair. You replied that the "much" qualifier was purposeful and meaningful. I take your point, though I still think the comment unfair. Beyond that you argue with me about Will and Diallo, a subject I never addressed, and about Diallo, a subject, again, I never addressed. Much more importantly, you seem to presume that I am politically conservative, when I am, in fact, liberal. Whatever "laundry" I may have to do, and whatever may disturb my sleep at night, it isn't a history of using a cover of individual rights to hinder the pursuit of racial justice.
I believe liberal political philosophy, activated at the level of social policy, should always be grounded in concern for individual lives; otherwise it invariably deteriorates into callous abstraction. That is what I was trying to suggest in my last comment, and not what you presumed.
I'm not even sure where some of the criticism of the individual rights perspective is coming from. There's nothing about individual rights that says you can't have a program to help people from disadvantaged backgrounds, whatever their race. Making sure that all individuals have the opportunity to get the educations they need and pursue the careers they want is perfectly compatible with a focus on individual rights.
But the individual rights perspective does sometimes affect the way you evaluate the MEANS towards any particular end. It suggests to me that there is no philosophical problem with trying to improve underperforming schools or with providing mentors to students or workers who might not otherwise get them in the general scheme of things. It also suggests that society should come down hard on deliberate, intentional discrimination. I know that I, as a woman, would not have been able to pursue the career I'm pursuing 40 years ago if someone had not knocked a few barriers down. I'm glad they did.
Where things get hairy for individual rights types is when the means used to advance previously disenfranchised people hurt the people who were not previously disenfranchised. For purposes of my argument, "hurt" does not include the mere fact of having to compete with a broader pool of individuals. That's a good thing, because no group should get to use artificial barriers to keep all the goodies for themselves. But when the powers that be start introducing quotas or proportional representation goals, it's important that to consider the costs of these policies to the current rank-and-file. (It's never the elites themselves who bear the majority of the costs.) Individual rank-and-file workers of all races have rights as individuals, regardless of whether they belong to one group or another.
I've got an interesting book in my reading pile that I hope will add some new dimensions to my thinking on this issue. It's called "Richard Nixon and the Rise of Affirmative Action," and the author is Kevin L. Yuill. The subtitle is "The Pursuit of Racial Equality in and Era of Limits," which is telling. I'm only just getting into the main argument, but it seems to be that affirmative action was not meant as a great liberal program to redress wrongs. In the early days of civil rights reforms, according to Yuill, education and economic growth were supposed to help black Americans advance without having their advancement come at anyone else's expense. In a world where growth is possible, adding a whole new group of talented, educated people to the mainstream economy should make for more growth... there's nothing inherently odd in that idea. Affirmative action, in Yuill's view, is just a holding action promoted primarily by conservatives in an era when people had lost faith in economic growth as a way to help everyone advance. It's zero sum, not positive sum like the earlier liberal vision.
it doesn't look as though economic growth is going to solve all social problems in the next year or so, but ultimately I think we are going to need to turn almost all our attention to economic growth and away from some of the zero-sum arguments that we have been worrying about over the past few decades. We really have no choice, given the way we've ignored the engine while arguing over who gets to sit where in the car. If the engine dies and the car doesn't go anywhere, does it matter?
I'm not even sure where some of the criticism of the individual rights perspective is coming from.
Really? I thought TNC described at least part of it very well when he pointed out there was a huge credibility issue. Many people over the years who have claimed to stand for "individual rights" or "colorblindness" have, in practice, shown themselves to be apologists for racism in the selective way the principles are applied.
Even the Ricci case might be instructive here. There was a test for promotion. A largely black group claimed the test was racially discriminatory and should be thrown out, and threatened a lawsuit claiming racial discrimination under Title VII. A largely white group disagreed, stated that the evidence of discrimination was weak and the standard of proof too low and therefore should be kept, and threatened a lawsuit claiming racial discrimination under Title VII.
While the test was racially neutral on its face, everyone took the same test, the claim was that if you looked deeper, the administration of the test was hiding racial discrimination. While non-certification of the test was racially neutral on its face, nobody's scores were counted, the claim was that if you looked deeper, this action was hiding racial discrimination.
So, we have two groups making the exact same claim under the exact same law, and somehow there's some sort of colorblind "individual rights" philosophical principle that says the white group wins? In this case, we have an employer saying that its promotion practices are designed to get the best workers possible, but George Will and others are saying no, if you look beneath what the employer is claiming, you'll see that their process is masking racist intent (out of curiosity, has Will ever suggested overriding an employers practices when it looked like Black people are hurt by them?).
Which is fine, I actually agree with that conclusion. But I'm not pretending there's some kind of weird overriding rights principle that in practice magically makes all minority claims about "group rights" while all majority claims are "individual rights".
"Likewise, I would argue that the problem with the racial disparity in crack/powder cocaine sentencing isn't just that the law clearly adversely affects blacks and may have been designed to do so, it's that in practice it's swelled the ranks of the incarcerated without providing any tangible benefit to the communities it's meant to protect."
It is frustrating to see you get this exactly backwards. The practice was specifically put into place because crack and the violence associated with dealing it was hitting black communities so hard, and in the mid 80's the sentencing disparity was seen specifically as a method of helping black communities. Now you can certainly argue that the practice dramatically backfired, but portraying it as facially race neutral/possibly intended to hurt black communities is exactly wrong. It was at best facially race neutral/intended to help black communities.