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Legal Commentary

: Discriminations

Good Advice, Bad Advice

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On the Forbes magazine web site Shikha Dalmia, identified as a senior analyst at the Libertarian Reason Foundation, has some advice for Barack Obama: he should reverse course (it wouldn?t be the first, or sixth, time) and come out against both racial preferences and legacy preferences. To win, she writes, Obama

will have to deliver on his promise of being a post-partisan unifier and convince working-class whites to join blacks--two key Democratic constituencies--to join forces behind him. This charge will require him to perform a delicate double-maneuver: persuade working-class whites that he's not an identity politician indifferent to their interests and, at the same time, assure black voters that his appeal as a post-racial candidate doesn't involve selling them out.

One principled way he could do both? Ask colleges to end preferences for minorities and white children of alumni in admissions.

Would such a move really be principled if he asked colleges to end legacy preferences only for the children of white alumni?

Be that as it may, the advice to Obama to make good on his initial promise, now faded into the post-Wright sunset, of ?One America,? ? ?There's not a black America and white America and Latino America and Asian America; there's the United States of America,? he impressively told the Democratic Convention in 2004 ? is sound, both morally and politically.

Racial preferences have been a sleeper issue so far, but they will generate more attention come November, given that Colorado and Nebraska are facing ballot initiatives--authored by a black businessman from California, Ward Connerly--to ban their use in public universities. If similar initiatives in California (1996), Washington (1998) and Michigan (2006) are any indication, they will win handily, thanks to white working-class support. Indeed, the Michigan initiative passed 58% to 42%, receiving nearly 70% of the votes in places such as Macomb County--home of the Reagan Democrats.

But Obama has condemned Connerly?s initiatives as ?divisive.? This will likely irritate working-class whites who already feel alienated by his ?god and guns? remark....

Obama can hardly claim there is only ?One America? while he continues to support preferential for some Americans over other Americans based on their skin color or ethnicity.

Dalmia?s advice to Obama to link his reversal on race preferences with a call to eliminate legacy preferences, although politically sound enough, is more problematical. The Obamas, after all, are representative of a whole generation and more of black college graduates with children who would benefit for legacy preferences. Will they be happy about that preference being taken away from them just as their children become old enough to benefit?

Dalmia?s more general comments on doing away with legacy preferences ? for example, that no admissions system using them can be ?generally fair? ? are even more problematical. Here?s a particularly troubling comment:

Dismantling racial preferences while leaving legacy preferences in place, as Connerly?s initiatives would do, won?t advance the cause of color-blind admissions because it will open up minority slots for white candidates but no white spots for minority candidates. It would effectively force disadvantaged minorities to compete on merit without holding rich, privileged kids to the same standards.
?Minority slots?? ?White spots?? Can Dalmia, can Forbes, be serious? Well, no, I guess not. And insofar as there is an implication, or something stronger, here (as I think there is), that Ward Connerly?s anti-race preference initiatives are somehow deficient, somehow themselves unfair, because they leave legacy preferences in place, this comments goes from un-serious to patently absurd, especially since Connerly is in fact an outspoken opponent of legacy preferences.

Legacy preferences may not be wise policy, and they certainly have a disparate negative impact on applicants not fortunate enough to have been born into families with Private U. graduates festooning the family tree, but, as I?ve written here too many times to cite (see here, here, here, and here for a few among many examples), the invidiousness of any unintended and disparate impact discrimination they involve is as nothing compared to the conscious and intended racial discrimination that is the foundational core of preferential admissions.

Finally, for someone associated with a Libertarian organization to chastise (even if implicitly rather than overtly) Ward Connerly and others for not attempting to pass a law telling private institutions how to weigh various admissions criteria (which goes far beyong prohibiting them from invading the ?protected categories? of race, religion, and ethnicity) borders on the bizarre.

Full post as published by Discriminations on September 29, 2008 (boomark / email).

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