Hawaiians-Only Policy Canned

Here's a weird historical irony: Right around the same time that the country observed the 40th anniversary of the landmark civil rights legislation, the Voting Rights Act, a court has ruled against a Hawaiian school sytems' longstanding preferential policy toward ethnic Hawaiians:

A 117-year-old policy of admitting only Native Hawaiians to the exclusive Kamehameha Schools amounts to unlawful racial discrimination, a federal appeals court has ruled.

Overturning a lower court, a panel of the 9th U.S. Circuit of Appeals in San Francisco ruled 2-1 Tuesday that the practice at the private school violates federal civil rights law even though the institution receives no federal funding....

The Kamehameha Schools were established under the 1883 will of a Hawaiian princess to educate "the children of Hawaii." The admission policy was created to remedy the disadvantages suffered by Hawaiians after the overthrow of the Hawaiian monarchy.

But the appeals court judges said they "do not read that document to require the use of race as an admissions prerequisite."

About 5,100 Hawaiian and part-Hawaiian students from kindergarten through 12th grade attend the three campuses, which are partly funded by a trust now worth $6.2 billion. Admission is highly prized in Hawaii because of the quality of education and the relatively low cost.

The case was brought by an unidentified non-Hawaiian student who was turned down for admission in 2003....

Non-Hawaiians may be admitted if there are openings after Hawaiians who meet the criteria have been offered admission, school officials have said.

Whole AP story, via San Jose Merc-News, here.

The school has signalled that it will seek a full decision from the appeals court and go to the Supreme Court if necessary.

Here's one complication: The school system is private, which showcases one complication of the civil rights legislation passed in the early- to mid-'60s: In the name of eradicating discrimination in all corners of American society, it eroded the distinction between private and public spaces, classifying businesses (including schools, country clubs, restaurants, hotels, and more) as public.

The rationale for that was straightforward: Such places were where huge amounts of discrimination took place. But by moving beyond places where the state (at whatever level) was acting in a discriminatory way, the laws effectively destroyed the possibility of outfits such as the Kamehameha Schools. That sticking point was the reason that principled libertarians such as Barry Goldwater were against the '64 Civil Rights Acts. Goldwater, who had helped integrate various aspects of Phoenix life in the '50s and '60s and who had supported local civil rights laws that banned discriminatory governmental policies noted that the '64 act "reintroduces through the back door the very principle of allocation by race that makes compulsory segregation morally wrong and offensive to freedom...Our aim, as I understand it, is neither to establish a segregated society nor to establish an integrated society...It is to preserve a free society."

It's worth recapturing just how odious and poisonous race relations were even in the mid-'60s. Private discrimination in housing, education, and other areas was widspread. And so was public discrimination too: Virginia's Prince Edward County, for instance, went so far as to close its public schools from 1959 to 1963 rather that integrate.

While I agree with the basic Goldwater position, I also think it's extremely easy to see why legislation passed at the time failed to respect any distinction between public and private space, especially when a lot of the opposition to civil rights legislation came not from principled types like Goldwater but from racist opportunists ranging from Strom Thurmond to Watkins Abbit and others. These guys were not about maintaining a "free society" predicated upon limited government and maximum individual freedom: They were about maintaining an odious status quo.

A while back in Reason, maverick legal theorist Richard Epstein asked whether affirmative action can be reconciled with liberal individualism. His suprising answer is here.

Comments

Jeff | August 8, 2005, 11:20am | #

But do the teachers get to where those great Kamehameha hats?

Ruthless | August 8, 2005, 11:35am | #

"legislation passed at the time failed to respect any distinction between public and private space,"

Even the not especially bright Lester Maddox was able to make the distinction. That's why he passed out ax handles at his restaurant. He went on to become governor of GA.

joe | August 8, 2005, 11:37am | #

Mm, Lester Maddox and his lifelong devotion to the distinction between public and private spaces.

Now that was a man with strong opinions about The Public/Private Space Problem.

D | August 8, 2005, 11:38am | #

I've heard Epstein speak about the Civil Rights Act before and even though he said that he would not have supported it for various reasons, he was willing to admit that some intrusion in private institutions was probably necessary. At that point, the government, most notably state governments, had so entrenched racist private institutions that it would have been wishfull thinking to hope that the free market and other forces within a free society would have the sort of dynamic impact one would normally expect.

The question then becomes how long such intrusions would be necessary. It seems clear the government established entrenchment is over and it is time to allow the pressures of personal automony to shape the institutions.

Seamus | August 8, 2005, 11:44am | #

"The school system is private, which showcases one complication of the civil rights legislation passed in the early- to mid-'60s: In the name of eradicating discrimination in all corners of American society, it eroded the distinction between private and public spaces, classifying businesses (including schools, country clubs, restaurants, hotels, and more) as public."

Actually, the civil rights legislation most at issue here was passed in the 60s all right, but the 1860s. I'm speaking of the Civil Rights Act of 1866, which the Supreme Court interpreted in 1966 to ban discrimination by private individuals in the sale of housing (Jones v. Alfred H. Mayer Co.), and in 1976 to ban discrimination by private schools (Runyon v. McCrary).

Jennifer | August 8, 2005, 11:48am | #

Since Hawaii is the only state which was once a separate country before being invaded and forcibly integrated into the US, I don't think they should have to play by the same rules as the rest of us if they don't want to.

When I was a baby I lived for awhile in Navy housing in Hawaii. I don't remember any of it, of course, but my mother told me that there was SERIOUS anti-white racism there, especially toward the sailors and their families. And though I oppose racism, I can't really say I blame them.

joe | August 8, 2005, 11:53am | #

Here's an interesting little story that's relevant to Epstein's ideas about the durability of private-sector racism, and its resistance to the gradual, rational change that marketist thinkers claim would have rendered affirmative action and anti-private-sector-discrimation laws unnecessary.

http://www.boston.com/news/globe/ideas/articles/2005/08/07/bubble_physics

Jennifer | August 8, 2005, 12:01pm | #

Joe--

That was a very interesting story. But I'm wondering how you think it applies here--while I could see it supporting the theory that the free market alone wouldn't have eliminated racism in the 60s (and I agree with that), wouldn't it also suggest that, given how our culture has evolved since then, anti-racism laws are NOT necessary anymore?

I'm thinking specifically of the way Denny's scrambled to cover its butt when it was accused of racism a few years back. I don't think Denny's was afraid of getting in trouble with the government--they were afraid of losing customers who, though white, would still refuse to patronize a racist business.

Ruthless | August 8, 2005, 12:06pm | #

joe,
I enjoyed your article. It sounds like what's always coming out of the Santa Fe Institute--complexity--which I regularly plug. But I'm with Jennifer that it didn't help your argument.

NoStar | August 8, 2005, 12:09pm | #

As Lester repeated explained, those are PICK handles, not ax handles. Only a damn Yankee couldn't tell the difference.

joe | August 8, 2005, 12:17pm | #

Jennifer,

"Not necessary anymore" and "not necessary to overcome segregation" are two very different concepts.

The copycat effect the authors discuss would have encouraged people to go along with segregation in the 50s and 60s, even if it was ultimately against their best interests to do so. A government intervention, like affirmative action and applying anti-segregation laws to places of public accommodation, was necessary to "change the polarity," make the copycat effect work against racism instead. As seen in your Denny's example.

Whether we're at the point of diminishing returns is an open question.

Mark Bahner | August 8, 2005, 12:22pm | #

Nick Gillespie writes, "While I agree with the basic Goldwater position, I also think it's extremely easy to see why legislation passed at the time failed to respect any distinction between public and private space, especially when a lot of the opposition to civil rights legislation came not from principled types like Goldwater but from racist opportunists ranging from Strom Thurmond to Watkins Abbit and others. These guys were not about maintaining a "free society" predicated upon limited government and maximum individual freedom: They were about maintaining an odious status quo."

But the problem is that we have a mechanism for changing things that are odious, but protected by the Constitution. It's called a constitutional amendment.

Don't like drinking of alcohol? Get a constitutional amendment to declare it illegal?

Don't like flag burning? Again, get a constitutional amendment.

Today, no one I know of argues that the owner of the Heart of Atlanta hotel wasn't an ignorant jerk. But being an ignorant jerk is protected by the Constitution. Or used to be:

http://www.4lawschool.com/conlaw/hoa.shtml

Jennifer | August 8, 2005, 12:22pm | #

Joe--

As I said, I agree that the anti-segregation laws were necessary back in the 50s and 60s. But I think that now, two generations later, we should dismantle them and see what happens next. I feel the same way about affirmative action--it's two generations later, so let's try applying the Martin Luther King principle of judging people "by the content of their character, not the color of their skin." (Or shape of their genitalia, for that matter.)

Ruthless | August 8, 2005, 12:23pm | #

NoStar,
Pick handles they were.
Here is Lester defending himself from joe's disinformation.
http://www.southerncurrents.com/misc/maddox_r.htm

Jennifer | August 8, 2005, 12:24pm | #

Of course, my last post went completely off-topic; I still say that since the Hawaiians never asked to join us, they shouldn't have to go along with us if they don't want to. Let them have their all-Polynesian schools.

joe | August 8, 2005, 12:24pm | #

Martin Luther King endorsed affirmative action during his lifetime, Jennifer, as a necessary step to achieving the just, integrated society he championed. I'm sorry, you're going to have to put that club down.

Jennifer | August 8, 2005, 12:27pm | #

Joe--

From what I read, King *opposed* affirmative action.

I also read that the original bill called for affirmative action to last ten years--that would have ended it in 1973.

joe | August 8, 2005, 12:29pm | #

What disinformation is that, Ruthless?

That the owner of a business that refused to serve black people may have had motivations other than an interest in the public/private dichotomy?

Jennifer | August 8, 2005, 12:29pm | #

Actually, after a quickie Google search, I see King wasn't as opposed to it as I'd been told. But even so, it's one thing to say, "In case of a tie between two equally qualified candidates, one black and one white, give it to the black guy." It's another thing to say "Give it to the black guy regardless of whether he can do the job."

joe | August 8, 2005, 12:31pm | #

Jennifer,

That "from what I've read" part can be a tricky bugger. Depending on what you've read.

I'm sure you're not the only person here that is surpirsed to learn that King supported - not opposed, not even didn't discuss, but actively supported and spoke out in favor of - affirmative action.

Jennifer | August 8, 2005, 12:33pm | #

You're probably right, Joe. And hasn't affirmative action worked like a dream? Black children making the most of their hard-won right to get an education--it's gotten to the point where white kids will disdainfully refuse to study and learn, because they say that such behavior means you're "acting black."

Phil | August 8, 2005, 12:35pm | #

Jennifer, while I sort-of-kind-of agree with you on a principle level about sunsetting some of the affirmative action and desegregation laws and "seeing what happens," I think we also have to realize that you and I would be extremely unlikely to suffer any of the potential negative consequences of doing so.

Phil | August 8, 2005, 12:38pm | #

And boy, that last response to joe was just ugly. You may as well have simply said, "Niggers is dumb" and left it there.

Jennifer | August 8, 2005, 12:39pm | #

Phil--

Actually, I technically qualify as a "minority" on account of being female. And I've seen a LOT of affirmative-action laws meant to help me out--hell, when I was teaching I remember seeing, in the NEA magazine, an ad for some summer-job thing that would look VERY good on the resume of a teacher. And the ad actually said "Applicants must be females, or males of non-European ancestry." In other words: no white guys need apply. Which is especially stupid because in public-school teaching white guys are the MINORITY; if you want to increase the diversity of teaching staffs you should discriminate against white women like me.

Seamus | August 8, 2005, 12:40pm | #

"Of course, my last post went completely off-topic; I still say that since the Hawaiians never asked to join us, they shouldn't have to go along with us if they don't want to. Let them have their all-Polynesian schools."

Well, they repeatedly asked for statehood during the first half of the 20th century.

I suppose if we really wanted to redress the historic injustice of 1893 (when a rogue U.S. consul aided the overthrown of the Hawaiian government by pro-American forces), we could give Hawaii its independence, with the franchise limited to the descendants of those (ethnic Hawaiians and haoles alike) who were Hawaiian citizens at that time. Thus, there would be special priviliges for Hawaiian citizenship, but not necessarily for Hawaiian ethnicity.

Of course, once they were independent they could do any damn thing they pleased, including petition for admission to the Union on the one hand, or enact affirmative action laws that legalized discrimination against haoles on the other.

Isaac Bartram | August 8, 2005, 12:42pm | #

Things have certainly changed since 1904:

"Berea [College]'s commitment to interracial education was overturned in 1904 by the Kentucky Legislature's passage of the Day Law, which prohibited education of black and white students together. When the U.S. Supreme Court upheld the Day Law, Berea set aside funds to assist in the establishment of Lincoln Institute, a school located near Louisville, for black students. When the Day Law was amended in 1950 to allow integration above the high school level, Berea was the first college in Kentucky to reopen its doors to black students."

http://www.berea.edu/about/history.asp

fluffy | August 8, 2005, 12:43pm | #

It is possible to doubt that the free market would have eliminated all racism among business owners in the south.

Naturally, to counter that argument, I would point out that it was never tried, so we don't really know.

I would also counter that argument by saying that I simply don't believe that the institution of property [and the principle of the liberty to freely enter into contracts] is somehow completely invalidated by the fact that a percentage of die hard racists in some areas would probably still be keeping patrons of other races out of their establishments, even today. [If it was legal, I imagine that small numbers of virtually every race would keep out members of some other race].

I'm sure there are lots of people who would not invite me into their home. Frankly, I don't give a shit, because I don't feel entitled to enter their home, and because I don't care to enter the home of that sort of person. If they also wanted to keep me out of their restaurant, for me to get angry about it I would have to believe that there was something inherently different about someone keeping me out of their restaurant than someone keeping me out of their home. And I don't.

hojo the megahunk | August 8, 2005, 12:46pm | #

In my years in Hawai'i, it always seemed to me that the Kamehameha admissions policy simply amounted to no-whites-allowed. I know for a fact that second- and third-generation Japanese who could somehow find a polynesian sounding name in their family annals were allowed admission, no matter how dubious or distant the connection. It always smacked of an old-boy type system to me. Find a picture of a Kam schools alumni gathering and see if you can find the polynesian... But should such private racism be illegalized? That's always been one of the questions that I find difficult to answer, even to myself. I guess the words that usually ended so many discussions of this topic on Oahu will do here: like, whateva, bra.

Jennifer | August 8, 2005, 12:49pm | #

Something I read in a libertarian book, but I don't know if it's true: apparently, bus companies in the South originally refused to segregate black passengers because they didn't want to alienate their customers; they only did so after the Southern cops arrested the drivers of non-segregated buses.

Phil--

No, that's the frustration of a former teacher who got sick to death of minority students refusing to learn a goddamned thing because they said that stuff like being literate was "acting white." I expected to hear bullshit like that from the sheet-wearing Klansmen I knew back down South; hearing it from a dumbass kid wearing a Malcolm X hat while simultaneously shitting on everything his idols fought to win for him was infuriating.

Steve | August 8, 2005, 12:50pm | #

Phil,

I don't see how Jennifer's comment was racist at all. It's not the equivalent of saying, "blacks are dumb" to point out the anti-intellectual among black kids. Plenty of blacks -- liberals included -- have noticed it. Or do you think plenty of black kids don't consider studying to be "acting white"?

Steve | August 8, 2005, 12:51pm | #

OK, I see Jennifer can defend herself.

Phil | August 8, 2005, 12:57pm | #

. . . that's the frustration of a former teacher who got sick to death of minority students refusing to learn a goddamned thing because they said that stuff like being literate was "acting white."

Yes, the long-lived cultural barriers to advancement that blacks have internalized over the decades are certainly a wonderful argument against forbidding schools from banning all black students. I can really see the connection. So what percentage of black kids have to be really trying to learn to not fall under this blanket condemnation? Toss me a number here.

Actually, I technically qualify as a "minority" on account of being female.

OK, then -- since our culture has advanced so far, let's rescind the 19th Amendment and "see what happens." It's possible we just don't need it anymore.

Sorry, but while I understand the importance of principles, I also understand the virtue of compromise and pragmatism.

Mark Bahner | August 8, 2005, 1:02pm | #

Jennifer writes, "Actually, I technically qualify as a "minority" on account of being female."

Sorry, Jennifer, you're in the tyrannical majority.

http://www.infoplease.com/ipa/A0800439.html

Mark (member of SOMMN...Stop Oppression of the Male Minority Now)

Jennifer | August 8, 2005, 1:03pm | #

OK, then -- since our culture has advanced so far, let's rescind the 19th Amendment and "see what happens." It's possible we just don't need it anymore.

Come now, Phil. You know full well the difference between a law demanding equality from the government, versus a law demanding equality from private citizens.

Jennifer | August 8, 2005, 1:04pm | #

Mark--

Be thankful Andrea Dworkin is dead, else I'd have to sic her on you for hurting my poor oppressed feelings like that.

One hundred years ago I would not have been allowed to vote, and it's ALL YOUR FAULT! So you'd damn well kiss my ass now, to atone for the sins of your ancestors.

Jennifer | August 8, 2005, 1:08pm | #

In all seriousness, Phil, I DO support laws getting rid of hiring quotas for females. Now, if all such laws are repealed and we end up back in the bad old days where prostitutes were the only women who could be self-sufficient, then I'll freely admit I was wrong and we DO need government oversight to prevent people from being oppressed. And the same for affirmative-action quotas for non-whites, too. But I don't think that will happen.

Phil | August 8, 2005, 1:09pm | #

Yes, Jennifer, I do know the difference. I also know that any principle whose end result is black kids getting police dogs and fire hoses unleashed upon them for the crime of wanting a fucking sandwich is needs adjustment to comport with social reality.

Phil | August 8, 2005, 1:10pm | #

I do not support hiring- or admissions-quotas laws, by the way, and I think they're inimical to the purpose of affirmative action legislation.

Jennifer | August 8, 2005, 1:12pm | #

I also know that any principle whose end result is black kids getting police dogs and fire hoses unleashed upon them for the crime of wanting a fucking sandwich is needs adjustment to comport with social reality.

How will getting rid of affirmative action bring back the fire hoses? I've already said earlier in this thread that I thought such laws WERE in fact necessary back in the 50s and 60s; I'm just saying we should try getting rid of them now.

Phil | August 8, 2005, 1:17pm | #

Right, and I'm saying that when all the sub rosa racists start putting up the "no blacks or Jews" signs -- and they will, I firmly believe that -- you and I aren't the ones who will suffer. Well, I will, if they go by the "one drop" rule, but still, you know what I mean.

Jennifer | August 8, 2005, 1:20pm | #

But you don't KNOW that will happen, Phil. That's why I'm saying rescind the laws and see what comes next.

Do you EVER foresee a time when affirmative action laws can be done away with?

fluffy | August 8, 2005, 1:20pm | #

Phil, could you specifically describe for me how repeal of the portion of the Civil Rights Act that dealt with so-called public accomodations would result in "police dogs and fire hoses unleashed upon" black kids?

stubby | August 8, 2005, 1:24pm | #

Phil:

I seriously doubt that ending affirmative action would result in 21st century Bull Connors. In fact, I think that scenario is damn silly. I've not been able to make up my mind about Aff Action so I've no position on it, but I don't think its repeal would result in a race war. Calling someone a racist, by the way, absent a shred of racist sentiment, is sleazy.

Jennifer: I've read several articles recently pointing up one weakness of affirmative action as it is currently practiced in higher ed - diversity is always about race, and not about income level or anything else. According to these articles (I seem to recall one in NYT, maybe I could find it if I searched a bit), the result is that today, at least in the more prestigious universities, there are a lot more upper middle class kids and far fewer working class or poor kids, regardless of skin color.

Jennifer | August 8, 2005, 1:27pm | #

Another thing about affirmative action: I earned the job I have now because (no false modesty here) the sample stuff I wrote when I applied absolutely kicked ASS. But I'm also the only woman who works for my company (though there are a few more in the graphic-design company connected to us), and I have no doubt there are some people who notice this and do NOT think, "Wow, she must be talented to land her position;" no, they look at me and think "Token female."

I can't even BEGIN to imagine what a black female nuclear physicist must go through.

Jennifer | August 8, 2005, 1:31pm | #

Stubby--

I don't doubt that at all. Affirmative action, as it currently plays out, will deny a spot to a stone-broke white kid from Appalachia to make room for the black child of Will Smith and Jada Pinkett. And affirmative action works AGAINST Asian minorities, because their pesky high test scores keep skewering statistics. I never understood how we're supposed to end up with a color-blind society when an Asian kid needs a 4.0, a white kid needs a 3.5, and a black kid needs a 3.0, to get into the same university.

I could MAYBE support a form of color-blind affirmative action based upon family income, but even that system would give me qualms--I had a hell of a tiime back in school because my parents made too much for me to qualify for aid, but the fact that they didn't give me a dime of their money didn't matter to the bureaucracy.

Phil | August 8, 2005, 1:32pm | #

Actually, on further thought, the first signs to go up would be "no gays."

Calling someone a racist, by the way, absent a shred of racist sentiment, is sleazy.

Sorry, but when someone, in response to being corrected regarding Dr. King's feelings about affirmative action, responds in hostility by saying, "Oh, they don't care about education anyway," I calls it as I sees it. Jennifer clarified her remark herself, and while I understand her frustration -- as do many black people -- it has nothing to do with affirmative action at all.

I seriously doubt that ending affirmative action would result in 21st century Bull Connors. In fact, I think that scenario is damn silly.

Ending affirmative action? No. Allowing restaurants to bar blacks from entering? Oh, yeah. Big time.

Jennifer | August 8, 2005, 1:40pm | #

Phil-

Down South, where the most racist white people are to be found, you'll also find (ironically enough) some of the largest black populations in America. So if the owner of the Denny's in Bumfuck, Mississippi, wants to prevent ninety percent of the local population from entering his restaurant, let him! Let's see how long he stays in business when his entire customer base consists of seven welfare-collecting NASCAR Dads whose net worth is invested in Franklin Mint Dale Earnhardt Collector Plates.

You know, if a restaurant owner hates my guts I'd rather know it from the get-go, rather than sit at a table and run the risk of him spitting something disgusting into my food.

And Phil, my original point was that affirmative action doesn't seem to be helping. There's a reason why so many successful* black people oppose affirmative action, and I don't think it's because they're all selfish bastards who want to pull the ladder up behind them.

You didn't answer my earlier question: do you ever foresee a time when we can do away with affirmative action, or will the government always have to keep a watchful eye on us to make sure we all Play Nice?

*Successful in the sense of having a real job--not the Jesse Jackson/Al Sharpton variety.

thoreau | August 8, 2005, 1:50pm | #

I can't even BEGIN to imagine what a black female nuclear physicist must go through.

I've never met one, but I'll take a stab at it: You've been one of the handful of women at a sci-fi or comic book convention, right? Now, imagine that you're constantly asked to participate in orientations, recruiting events, outreach programs, TA training sessions, colloquia, social hours, site visits, etc. Put those two notions together and I'd imagine that's what she goes through.

Then again, she would also get to play with nuclear reactors. So what's she got to complain about? ;)

Randolph Carter | August 8, 2005, 1:56pm | #

Thoreau -

Is it only women who have to undergo TA training? If it's what it sounds like, I'd like to watch.

drf | August 8, 2005, 1:58pm | #

Thoreau: what does "myob" stand for - Rick B used it the other day, too.

The most graphic example of the double-edged sword of AA I ever experienced was in an exchanged with a leftie who would make our friend Joe seem centrist (grin) by comparison:
"Justice Thomas is against [AA]. Where would he be without it?"

If Thomas Magnum and Higgins had kids, would they be allowed to attend the school?

cheers,
drf

Randolph Carter | August 8, 2005, 1:58pm | #

ooh, teacher's assistant. never mind.

Jennifer | August 8, 2005, 2:02pm | #

MYOB=Mind your own business

Thoreau,
I'm thinking more about the frustration this physicist would feel running into people who assumed she got her job NOT because she's eminently qualified and stunningly brilliant, but because she's a twofer.

drf | August 8, 2005, 2:06pm | #

tack saa myckett.

Can the physicists wear a Dirndl, too?

Jennifer | August 8, 2005, 2:07pm | #

Better yet, what DRF's friends said about Justice Thomas--of COURSE he owes his job to affirmative action, right? I mean, no minority could possibly get a job because the guy in charge of hiring thought he deserved it, right?

Phil | August 8, 2005, 2:14pm | #

I don't think Justice Thomas is the best example to use for anything at all, here; aside from the job of Supreme Court Justice being rather sui generis and not exactly an open field, we all saw how quickly GHWB ran to replace the one black guy with another black guy, right?

In fact, I'd bet the only reason why there's less pressure on Bush (or a less obvious move by Bush) to replace O'Connor with another woman is that Ginsburg is on the court.

And Phil, my original point was that affirmative action doesn't seem to be helping.

Well, we can always try to examine the counterfactual and imagine what American culture would be like today without it. You first. Do you think American blacks would be better off today had there not been three or four intervening decades in which it was policy?

There's a reason why so many successful* black people oppose affirmative action . . .

And an equal number don't, and either way it's irrelevant. An idea is not good or bad based on the number or people who approve of it.

You didn't answer my earlier question: do you ever foresee a time when we can do away with affirmative action, or will the government always have to keep a watchful eye on us to make sure we all Play Nice?

I'm sure I don't know.

fluffy | August 8, 2005, 2:17pm | #

The only way that restaurants barring anyone, of any race, would be if members of the banned group tried to enter despite the property owner's wishes, and the police were forced to resolve the dispute.

I realize that the visual image would be upsetting, but that's a hell of a way to decide policy.

If we're going to make policy on the basis of groups being willing to get arrested because they disagree with what someone is doing with their property, then we better ban all abortion immediately.

That also gives me an idea for how to get around that pesky free exercise of religion thing. If I can get together enough people who don't like Baptists and convince them to storm churches on weekends, maybe I can get the churches shut down.

Jennifer | August 8, 2005, 2:18pm | #

Phil--

As I've said before, I agree that affirmative action was probably necessary when the desegregation laws were first struck down, but I think we should try and see what happens without them now. And your counterarguments seem entirely a matter of faith: We must keep these laws because without them we will ABSOLUTELY regress right back to where we were before!

How do you know this?

fluffy | August 8, 2005, 2:18pm | #

Sorry, my first sentence makes no sense because I dropped part of a clause. The full sentence should read: "The only way that restaurants barring anyone, of any race, would lead to police dogs and fire hoses would be if members of the banned group tried to enter despite the property owner's wishes, and the police were forced to resolve the dispute."

Phil | August 8, 2005, 2:19pm | #

And all the affirmative action talk is distraction from what the point was supposed to be, which was the Civil Rights Act, which tells people that if they're going to open their doors to the public, they have to open them to the public.

Phil | August 8, 2005, 2:24pm | #

Jennifer, your arguments are a matter of faith as well: "If we remove from law the Civil Rights Act which requires business open to the public to be open to all members of the public, there will be no ill effects whatsoever." How do you know this?

thoreau | August 8, 2005, 2:24pm | #

Randolph-

Everybody has to go through TA training, but not everybody is asked to train the new TAs. My own anecdotal observation is that there's a small amount of, um, "selection bias" in whom they pick for that, but a more significant amount of "selection bias" in who runs the outreach events.

thoreau | August 8, 2005, 2:28pm | #

By outreach events I mean science demos for young children. In fact, in one program they say that selection bias is a feature. Which I don't really object to, but I do notice it. Why do I notice it? Probably because people bragged about it.

And I should make it clear that I'm referring to my experience at the university. I haven't been in my new situation long enough to draw any firm conclusions on these matters here. Keep in mind that biology has a somewhat different demographic profile than physics.

fluffy | August 8, 2005, 2:45pm | #

"And all the affirmative action talk is distraction from what the point was supposed to be, which was the Civil Rights Act, which tells people that if they're going to open their doors to the public, they have to open them to the public."

I don't understand this.

If someone advertised that their property was open to all members of the public, and then tried to exclude certain members of the public, I might agree.

But if you never claim from the outset that your property is open to all comers, I don't see how this applies.

I let one of my neighbors into my house the other day and they used the bathroom. Does that mean that I should expect truckers to get off the highway to take litter-box breaks now?

Phil | August 8, 2005, 2:54pm | #

Ah, I see. We're going to play the disingenuousness game, and pretend that the difference between Woolworth's and my house is one only of location and not of kind. And that taking people's tax money -- AND YES I UNDERSTAND THAT IN IDEAL LIBERTOPIA THERE WOULD BE NO TAXES -- to support your store's infrastructure and utilities and police protection, then telling the taxpayers they can't buy a sandwich or look for underwear in there, is A-OK.

But your support for "No Negros" policies is noted for future reference, fluffy.

Yogi | August 8, 2005, 2:54pm | #

I can't even BEGIN to imagine what a black female nuclear physicist must go through.

I'm with Thoreau here too, except I'll add that any U.S. students tend to be in the minority in the physics department. At least here at Iowa, the foriegn students are much smarter than the rest of us. I'm sure as a white middle class male, I was admitted because I could speak english as a TA.

Jennifer | August 8, 2005, 2:58pm | #

Jennifer, your arguments are a matter of faith as well: "If we remove from law the Civil Rights Act which requires business open to the public to be open to all members of the public, there will be no ill effects whatsoever." How do you know this?

Phil, I've said multiple times here that I don't know for sure what would happen; I'm just saying we should give it a TRY, and see what happens next. YOU are the one who's insisting that there's no need to perform this experiment, since its outcome is already a given. Which is why I ask again: how do you know this?

Phil | August 8, 2005, 3:12pm | #

I don't, Jennifer; however, given that the Civil Rights Act isn't particularly hurting anyone except, you know, bigots, why change it at all? What's the pressing situation that requires that we rush out to try this "experiment?"

Jennifer | August 8, 2005, 3:18pm | #

What's the pressing situation that requires that we rush out to try this "experiment?"

Well, for starters, because we have too many damned laws already, so it would be nice to determine which ones are unnecessary so we can take them off the books. And there's only one way to find out if it is unnecessary or not, and that's to see what would happen without it.

thoreau | August 8, 2005, 3:19pm | #

Yogi-

Iowa? Cool! Are you in Soukoulis's group? I don't know him personally, but I've read a lot of his papers.

fluffy | August 8, 2005, 3:20pm | #

I'm sorry, Phil, but I don't think I'm being disingenuous at all.

I would be being disingenuous if there were an obvious distinction between the two classes of property, and I knew the distinction, but was pretending I didn't.

In this case, there really is no simple or obvious distinction, that anyone can explain any better than, "Because, like, because...obviously a store is different from a house" - and I'm not pretending I don't know the distinction, I am steadfastly REFUSING to acknowledge an amorphous distinction that people don't even try to support.

I think it would be more apt to say that I am being stubborn, than disingenuous.

The distinction you attempt to draw in your post doesn't apply. My house also receives police protection, is supplied with utilities, and borders on a public road / infrastructure element. Why wouldn't that mean that my house isn't really private property either?

My preference is simply for property owners to be able to allow access to their property according to their own lights. If some people say, "No negroes," those people are a-holes, but not criminals. If some people say, "No fluffies," I wouldn't even give it a second thought.

I also disagree with laws barring discrimination against protected classes in employment, not because I hate the members of those protected classes, but because I don't feel that any purchasing decision should be actionable in the courts. If you had to wonder, every time you bought milk or orange juice or a book or a CD or anything else, whether or not someone was going to sue you because they were convinced they could "read in your mind" that your purchasing decision reflected a racist intent, or perhaps because they thought they could prove that your purchasing decisions had a "disparate impact" on minority-owned businesses, I am sure you would very quickly find the situation intolerable and oppressive. I also "disingenuously" don't see any useful distinction between buying labor and buying a carton of milk, and don't see any reason to treat buying labor as a special case. I don't see why people running businesses are somehow less entitled to make arbitrary purchasing decisions than people buying milk. I also don't see why people running businesses should even be in the position of having to justify their purchasing decisions, since no one ever asks me to justify why I shop at one store or another, call one landscaper or another, use one plow guy or another, etc.

ChicagoTom | August 8, 2005, 3:29pm | #

To add my $.02 to the debate between Phil and Jennifer. I think that repealing the laws like Jennifer would like to try would be a horrible idea. You can believe that we don't need them any more or you'd like to see what happens, but if the gay outrage in this country is any indication, (and I think it is) then I think its a pretty safe bet that lots of people that aren't compelled to avoid discrimination by law, will discriminate. Maybe "the market" will adjust or maybe it won't but that is quite a risk for minority groups in this country to be subjected to simply because some want an "expirement" to see how "effective" these laws are.

And if we do realize that those laws are in fact necesasry, Im sure passing them again will be much more difficult and any potential damage would take a LONG time to undue.

As for Jennifer's belief that "Well, for starters, because we have too many damned laws already, so it would be nice to determine which ones are unnecessary so we can take them off the books. " There are lots of other places to focus our energies on repealing bogus laws that aren't effective that have a much lower chance of hurting huge groups of people. (Like the Drug War)

I think that affirmative action laws (although they probably could be tweaked a bit to take financial standing into account) are quite low on the list of obvisouly bad laws.

Jennifer | August 8, 2005, 3:34pm | #

ChicagoTom--

Oh, I agree, the affirmative action laws aren't the best place to be focusing our energies on, but I'm not exactly focusing them in that direction--I think it would be nice if we could try to go without them for awhile, but I'm far more concerned with the War on Drugs and our idiot foreign policy. But it's not like the government's given me a choice: "We'll repeal the WOD or affirmative action--choose one or the other!"

joe | August 8, 2005, 3:45pm | #

Jennifer, fluffy, puh-LEASE. The law distinguishes between commercial and residential property, between private places and places of public accommodation, and between front office and back office, all the time. Don't play dumb with me, ladies. Ain't nobody dumber than joe!

Phil, Jennifer is an embittered ex-teacher. Her mind immediately goes to the mose relevant bad experience she had in the schools whenever a subject is brought up. In this case, the subject was African Americans and education. I wouldn't read too much more into it than that.

drf, I agree with that sentiment about Thomas. Not only would he have never been nominated by Old Bush if he didn't "need" a black judge to replace the World Historical figure of Thurgood Marshall, with his short, indistinguished record and personality problems, but during the confirmation battle, it became clear that his academic achievement, by itself, could not explain the opportunities that kept falling his way.

And that's another thing - the implication that economic status doesn't play a role in admissions and hiring policies. Anybody who works in an admissions office can tell you that, if two applicants have identical records, but one is from flyover country and one is from Long Island, the West Virginian/Mississippian/Montanan will leave track marks across the back of the New Yorker. Schools love to brag about their geographic, economic, and cultural diversity.

joe | August 8, 2005, 3:51pm | #

Phil,

If discrimination by race became legal again, it would be extremely unlikely to turn back the clock to 1950 Memphis. Those shopkeepers who refused to serve black people would be the pariahs. There is a lot of unequal opportunity and personal prejudice to overcome in this country, but the racial caste system has pretty much ceased to exist. The horrible, intrusive affirmative action and antidiscrimination laws worked, in the sense of changing our culture into one in which even "gun toting traditional values conservatives who are really into their Scots-Irish heritage and states rights" types - yeah, let's call them that - are compelled to swear their public fealty to colorblindness.

Russ D | August 8, 2005, 4:09pm | #

You'll see all kinds because of Aff. Act. My sister runs a post-med curriculum at Harvard. Every semester there's at least one a-hole who doesn't want to do the work and then cries racism/sexism (nearly every system-gamer my sister has run into has been female) and the school just goes along with it because the cost of defending the school against the lazy lout isn't worth adhering to the principle. Generally these system-gamers make no money (and no effort) in the medical profession in the first place, all their income derives from "participat[ing] in orientations, recruiting events, outreach programs, TA training sessions, colloquia, social hours, site visits, etc."

Russ D | August 8, 2005, 4:13pm | #

There are lots of other places to focus our energies on repealing bogus laws that aren't effective that have a much lower chance of hurting huge groups of people. (Like the Drug War)

Of course, the drug war was really a euphemistic war against minorities in the first place.

Steve | August 8, 2005, 4:24pm | #

joe,

The law does indeed distinguish between public and private space, but it doesn't always do a very good job. For example, the Boy Scouts, private country clubs, and other groups that appear private have been deemed "places of public accomodation." I'm not defending racist country clubs or homophobic Scout leaders, but it does raise the question: how exactly do we define public and private space? It isn't always as simple as you make it sound.

Stevo Darkly | August 8, 2005, 4:59pm | #

Jennifer: "Something I read in a libertarian book, but I don't know if it's true: apparently, bus companies in the South originally refused to segregate black passengers because they didn't want to alienate their customers; they only did so after the Southern cops arrested the drivers of non-segregated buses."

I think I read the same book; I remember it was by Thomas Sowell, and it was probably Preferential Policies: An International Persepctive.

It was streetcar companies, actually. Some initially refused to follow Jim Crow "blacks in the back" laws until they were fined or otherwised penalized by the state. Not that the streetcar operators necessarily loved blacks, but they did love blacks' dollars. Otherwise it was as you described.

The lesson was that free market competition tends to punish and discourage irrational discrimination, especially when it's so blatant. Race-based laws (like Jim Crow), on the other hand, allow policy-makers to pander to pressure groups and inflict irrational behavior on everyone, while passing the costs on to others.

joe | August 8, 2005, 5:05pm | #

Stevo,

There were no laws requiring lunch counters to be segregated, or businesses to establish whites only restrooms. The wonderful, wonderful market had decades to punish those evildoers, and the wonderful wonderful market didn't so shit. Wait, let me modify that, the wonderful wonderful market convinced storeowners that they had to do those things, or their business would suffer.

The owners were not being irrational. Many of them probably felt bad about what their customers pushed them to do. I believe the "bubble physics" article I linked to above provides a good explaination of this.

The collective result of a large body of rational decisions can, indeed, be irrational.

Jennifer | August 8, 2005, 5:08pm | #

Joe--

Most, if not all, of the segregation you mention WAS required by law. I did the quickest of searches on Google to find this link, though I'm usre there are more detailed ones out there:

http://afroamhistory.about.com/library/weekly/aa010201a.htm

Isaac Bartram | August 8, 2005, 5:36pm | #

Jennifer

Indeed, refer to my post re: the Day Law. This law required that private schools in Kentucky be segregated even if the operators wanted to integrate and the students wanted to be integrated.

The railroads tried to fight segregation laws because of the expense of maintaining segregated facilities.

joe | August 8, 2005, 5:57pm | #

Jennifer,

The article you linked to suggests that some practices of segregation were mandated by law, but no one has suggested otherwise. Many were not.

Most relevantly, Lester Maddox's resaurant was not required by law to be segregated, which is why he hid behind the private property argument, and why he was targetted by protestors in the first place.

andy | August 8, 2005, 6:48pm | #

Back to the subject at hand...

It's obviously a racist policy, possibly a bad one, but they have every right to have it.

"Overturning a lower court, a panel of the 9th U.S. Circuit of Appeals in San Francisco ruled 2-1 Tuesday that the practice at the private school violates federal civil rights law even though the institution receives no federal funding...."

So we're gonna bust up in their country, start runnin' the bitch and THEN some lefty jackasses in SF are gonna tell them how they can run their schools? WTF?

It's a PRIVATE SCHOOL, fer chrissakes. If the whites or Japs or the halfbreeds or whomever don't like it they can start their own schools! I'm so sick of the feds (or the State for that matter) trying to micromanage everything they find unpleasant.

Eric the .5b | August 8, 2005, 7:15pm | #

The horrible, intrusive affirmative action and
antidiscrimination laws worked, in the sense of changing our culture

Just like those drug laws worked, in the sense of getting rid of all the junkies and potheads...

Eric the .5b | August 8, 2005, 7:21pm | #

I think that affirmative action laws (although they probably could be tweaked a bit to take financial standing into account) are quite low on the list of obvisouly bad laws.

And yet, the topic is racial preferences - and she's talking about it! Egad.

drf | August 8, 2005, 7:58pm | #

"It's a PRIVATE SCHOOL, fer chrissakes."

imdb.com/title/tt0086143/

i see.....

Stevo Darkly | August 8, 2005, 8:12pm | #

joe said: "There were no laws requiring lunch counters to be segregated, or businesses to establish whites only restrooms." (Emph. added.)

From the article Jennifer found: "Southern states passed laws that restricted African Americans access to schools, restaurants, hospitals, and public places."

joe responds: "The article you linked to suggests that some practices of segregation were mandated by law, but no one has suggested otherwise."

Nice deflection.

A: "There were no laws requiring lunch counters to be segregated"
B: "Southern states passed laws that restricted African Americans access to ... restaurants..."

Be that as it may. If we set aside the other examples and focus on what joe wants the topic to be, Lester Maddox's segregated restaurant... well, I was speaking of a general trend, which neither rules out nor is disproved by a few counter-examples. (As in lunch counter, ha! No pun intended.)

1) The fact that Maddox's restaurant drew protests suggests the presence of social pressure that might have ultimately worked even in the absence of changed laws.

2) Or maybe it never would. In the absence of legal interference by the state (one way or the other) over time I would expect the wonderful, wonderful market to produce a mixture of the following:

a) Segregated restaurants for whites who dislike blacks, like Maddox's.

b) Segrated restaurants for blacks who dislike whites.

c) Restaurants where people who like to mingle can do so.

No real harm in letting a few bigot-oriented restaurants persist where the hard-core racists can isolate themselves, as long as the law doesn't prevent anyone from opening a segregated restaurant to serve the people who wanted one.

Come to think of it, in a free market I would expect a greater proportion of segregated restaraunts to persist -- in my high school cafeteriam I noticed that minority groups often self-segregte themselves while dining -- but I would expect more integration aboard mass-transit.

See, you could set up a restaraunt almost anywhere, allowing more diversity in clientele, but I think transit systems for moving people in numbers would tend more toward natural monopolies of the most desirable and economical routes. A limited number of lines serving more people would tend to draw a more diverse clientele together. Therefore market forces would tend to desegregate transit systems more rapidly than restaurants, which appears to have been the historical case (if not for government interference).

Perhaps if that desegregating experience aboard streetcars had been allowed to persist, it would have led to greater tolerance for, or even appreciation of, mixing of the races in other venues.

thoreau | August 8, 2005, 8:18pm | #

Stevo-

Wow, you're, like, serious! Don't get me wrong, your insights are cool and all! But I miss the humor :(

Ruthless | August 8, 2005, 9:04pm | #

thoreau,
I don't appreciate your poo-pooing Stevo Darkly. I'm a southerner, and I think he has hit on some of the complexities of trying to put an end to racism as quickly and efficiently as possible.
I'm coming in late here because I wanted to finally respond to joe, to the effect Lester might have been a racist, but he still deserves credit for highlighting the point Goldwater observed.
Presuming to speak for Lester:
First, it's my restaurant.
Second, don't rush me as I carefully consider whom I may or may not wish to serve, because profit is my motivator.

joe | August 8, 2005, 10:06pm | #

Stevo, read the article. Look at the part that said, "Laws were passed...Signs began appearing..." In fact, the article backs up my position, by linking the spread of private-sector segregationist practices with the imposition of segregationism in the public sector. The laws, though limited in their sphere, laid down the pattern that the rest of society followed. Just as the changes in the law during the Civil Rights era brought about changes in common practices.

And you have to be kidding me to suggest that, in the Jim Crow South, the existence of all black businesses would have been the equivalent of the all-white businesses. There is a reason that separate was ruled to be inherently unequal in Brown vs. Board.

Eric .5b, "Just like those drug laws worked, in the sense of getting rid of all the junkies and potheads..." Are you actually going to argue that the changes in racial beliefs and practices in this country over the past four decades are the equivalent of the complete absence of change in patterns of drug use since the 1970s?

biologist | August 8, 2005, 10:16pm | #

Joe:

Brown v. Board was about inequality in spaces we can all agree are public: publicly funded schools (leaving aside the argument whether or not such things should exist)

businesses, though defined by the Civil Rights Act as places of public accommodation, are clearly privately owned. statutory law makes demands on those private holdings. constitutional law may make those private holdings beyond the reach of the statutory law. that's the crux of the argument at hand. to argue that businesses are public because they use public thoroughfares, etc. is absurd.

further, if gov't punishes businesses whose owners are racists, then the gov't is in the business of viewpoint discrimination and further violates the rights of racist business owners to freedom of speech and freedom of association

racists have rights and deserve due process, like anyone else

Stevo Darkly | August 8, 2005, 10:31pm | #

joe, I read the article. I also read that book tracing the effect of racial-preference laws around the world, both those that are racist and those intended to fix racism. I'm now less clear on your point than when I started.

In fact, the article backs up my position, by linking the spread of private-sector segregationist practices with the imposition of segregationism in the public sector.

"Link" is one of my least-favorite weasel words. Timothy McVey was "linked" to a militia group. (He attended some meetings, and they threw him out for being too radical.) It does say anything about the nature of the relationship, or what caused what.

If you're saying that the racist laws caused private individuals to participate in racially discriminatory behavior that they would not have otherwise, that supports my point.

This conventional wisdom is that racism would flourish under an unregulated, free market environment, and it's a good thing we have a government to fix this. However, under free market conditions, both racist and non-racist behavior is allowed; neither is required. In the past, laws were passed that required racist behavior and forbade segregation.

Government, as a centralized decision-making process, is subject to being captured by pressure groups in a way that the free market is not. And then it enforces behavior uniformly. The wonderful, wonderful market, on the other hand, may permit lots of people to behave badly, but it also allows dissenters to experiment and deviate and improve, and be rewarded for it. I think that's a better way to improve behavior. The streetcar companies were on that road before government stopped it. That's my intended point, is all.

Stevo Darkly | August 8, 2005, 10:34pm | #

thoreau --

Sorry, amigo. Using government to fix racism is one of my hot buttons. I did attempt some humor over on the "Indian names for athletic teams" thread, although some if it may be a bit oafish.

Stevo Darkly | August 8, 2005, 10:50pm | #

By the way, "the other libertarian magazine" (Liberty, which does not effectively update its Web site), periodically runs stories from an author who reminisces about growing up in Hawaii. Apparently at many mixed-race schools, the last day of school is traditionally (not officially, of course) "Kill a Haole Day." (Haole = "whitey.")

It's not an actual murderfest but ranges from relatively mild but unpleasant harassment of white kids to beating them up and, according to one story I read elsewhere, throwing a kid off a roof. Some parents keep their white kids home from school on this day; some white kids play hooky.

If that's a widespread custom, I wonder what will happen when they integrate the Kamehameha schools.

Darkly | August 8, 2005, 11:35pm | #

errata for post by: Stevo Darkly at August 8, 2005 10:31 PM


In the past, laws were passed that required racist behavior and forbade integration.

joe | August 9, 2005, 9:51am | #

biologist,

I understand and appreciate that your position is a principled one that has nothing to do with racist beliefs. I also disagree with it.

I can only conclude, then, that you are a Nazi.

stubby | August 9, 2005, 2:07pm | #

This week's Economist has an interesting article on the current state of race relations, the Voting Rights Act, affirmative action, etc. etc. It raises some questions that Phil might consider racist, but I found it measured and thought provoking, like most of the magazine's pieces.

stubby | August 9, 2005, 2:11pm | #

Whoops - I messed up. The article I just read in the Economist was a much shorter one than the article I linked to above; what I read was the teaser article they sometimes run a few pages ahead of the big article.

I haven't yet read the big article, linked above. I'm sure I'll find it equally thought provoking and measured, but in case it's not....

Eric the .5b | August 9, 2005, 7:45pm | #

Eric .5b, "Just like those drug laws worked, in the sense of getting rid of all the junkies and potheads..." Are you actually going to argue that the changes in racial beliefs and practices in this country over the past four decades are the equivalent of the complete absence of change in patterns of drug use since the 1970s?

Since my point is that the change in those racial beliefs and practices is wholly unlike the absence of change in patterns of drug use, no. But thanks for playing, Joe.