By Guest Contributor Patrice Peck, cross-posted from Zora & Alice

How can you notice that something is missing if you never even acknowledged that thing to begin with? The lack of racial diversity on the major television networks—ABC, CBS, NBC, FOX, and The CW—clearly illustrates how an omission can actually be rather glaring. Yet, whenever critics draw attention to the lopsided numbers of lead minorities in television, writers, producers, and casting directors are quick to cry color-blind in hopes of white washing the issue with a fresh coat of guiltless naivete. When addressing this issue, television executives always point to profitability and markets as the main reasoning behind their casting while uncomfortably skirting around their propensity for narrow thinking, country club-style hiring, and disregarding racial diversity.

Then, this September, NBC inadvertently shed light on television’s homogeneity by picking up J.J. Abrams’ newest project, Undercovers, a show surrounding a married couple who leave retirement to rejoin the CIA. Abrams (Lost, Alias) and co-creator Josh Reims (Felicity) made headlines with their unorthodox casting of Boris Kodjoe and Gugu Mbatha-Raw, both black actors, making Undercovers the second NBC show to feature a black lead couple (The Cosby Show being the first.)

Nonetheless, at a panel for Undercovers, Reims still insisted that when it came to casting the leads, both he and Abrams considered novelty as opposed to color as if the two weren’t synonymous in Hollywood. “[We said] Let’s just see every possible incarnation of person [so we won’t end up with] the same people we’ve seen on TV a million times … Boris and Gugu came in, and we sort of knew immediately, these are them. We didn’t go out of our way to say we are hiring two black people to be the leads of our show, but we didn’t ignore it either.”

All of this trailblazing, intentional or not, came to a screeching halt on Thursday, November 4th, when NBC canceled Undercovers due to a drastic decline in ratings. While there is little debate across the board about sub-par quality of the freshman series, a consensus on sustaining the diversification that Undercovers exemplified has yet to be seen or heard. Can television executives still justifiably profess ignorance and oversight once the elephant has been revealed for all to see? Will Undercovers serve as cautionary tale for networks that consider crossing the color line? In Hollywood, money talks and green takes precedence over every color, so perhaps it is actually black viewers who should be blamed for the television industry’s propensity for exclusionary content.

In her review of an Undercovers episode, Cocoa Popps, an Urban Culturalist Writer for The Huffington Post wrote,

I guess I’m just mad because this is a big deal people! Having black lead actors on television in programming that isn’t comedy is a major step in networks finally believing that yes, black folks watch TV, and yes we do more than laugh — we like to think too! But we need and appreciate good content.

Nevertheless, one could argue that if black viewers had stormed their television sets every Wednesday night at eight and tuned in to the series, the number of viewers would have exponentially increased, ultimately resulting in a rating impressive enough to demand not only an order of more episodes but a new season all together. Because high ratings clearly indicate a profitable market, television executives, naive or not, would be hard pressed not to jump on the black lead bandwagon. Then, as the amount of shows targeted to black viewers would increase, so would the chance of those shows actually being good, not to mention successful. If that were the case, should black viewers take one for the team at the cost of being subjected to sub-par content? Surely not. Then again, television executives cannot feasibly create shows without a clear market. Bringing diversity to television is, without a doubt, a two-way street.

Thembisa S. Mshaka, Entertainment industry veteran and author of Put Your Dreams First: Handle Your [Entertainment] Business, has the unique opportunity of seeing this issue from both sides of the fence. In terms of pinpointing the actual cause of this diversity dearth, Mshaka takes everyone into account:

As a media professional, do you think that it’s the responsibility of the network execs to get more people of color as leads on major television networks or the responsibility of the viewers to support the shows? BOTH. Part of the issue is that viewers of color are not well represented by the ratings system, so there is a disconnect in how accountable networks think they need to be. The other part of it is that people of color are so starved to see their images on TV, they’ll settle and watch something even if they have issues with it…No audience is going to like everything…Black viewers are not a monolith and deserve diverse programming that reflects a range of their experiences.

One possible solution to television’s diversity dilemma might be found if we take a page from colleges and universities across the nation: Affirmative Action.

Though supporters of affirmative action differ in terms of their proposed methods, for the most part they share the belief that because of the centuries of oppression that minorities, particularly blacks, have been subjected to in the United States—the country which has profited greatly from that same oppression—owes it to those minorities to level the playing field both socially and economically. Seeing as how the United States, the self-acclaimed land of opportunity, heralds a strong academic education as being the foundation of any successful professional, the government established affirmative action primarily within colleges and universities, providing minorities with access to higher education, one of the most lucrative forms of social capital (aside from skin color.)

While many may argue that television and the education system are two totally different spheres with television being less significant, keep in mind that education and television have been used interchangeably as supplementary mediums ever since the invention of television. In the NAACP’s 2008 Report on the Television Industry, Out of Focus—Out of Sync Take 4, Vicangelo Bullock, executive director of the NAACP Hollywood Bureau, expressed the significant role that major television networks play in society: “these media giants beam powerful images throughout the world, shaping our beliefs, opinions and decisions.” Consider the large influence that education also has in shaping the minds of our society from an early age and the similarities between television and education become even more apparent.

Until people of color, both in front of and behind the camera, can gain full access to the predominantly white boys club that is the television industry, demonstrating the potential profit and success of shows with lead people of color will be impossible; just as proving that students of color coming from disadvantaged backgrounds would not be able to demonstrate their academic qualifications without gaining full access to predominantly white institutions. So why not apply affirmative action to the television industry and allot a certain number of television shows to non-white racial groups so that the chance of the show, such as Undercovers, becoming a hit is greater than fifty-fifty?

If there were a required quota to fill for television lead actors, writers, and directors each season, then television executives would have to come to terms with the lack of diversity in television networks, and, in turn, be held accountable for the subsequent television line up. Of course, similar to the guidelines held in the education field, the quality of these shows would all be at the very least on par with the other shows vying for a prime time spot.

Yes, some shows might flop, but at least they’ll have the chance to flop just like every other show that manages to make it on to a major network. Also having the guaranteed spots would prompt writers and producers to take chances and create series that go beyond the stereotypical or appropriating content sometimes found in lasting series led by people of color. In order to ensure diversity in terms of content, behind the scenes roles such as producing, writing, and directing must also be included in this action and enforced at film schools and television companies across the nation through the admission, recruiting, and professional training process.

To be clear, we are not asking for handouts. In addition to bum rushing main stream television, the Black, Asian, Hispanic, and Native American communities should also establish distribution companies and studios, such as Tyler Perry, so that we retain full control of our resources, harness our consumer power, and make the most of the dynamic star power at our disposal. And while some may be swift to cry “reverse racism” or “prejudicial treatment,” affirmative action does not only benefit those at the lower end of the playing field. Adding an element of diversity to any situation, whether it be television casts or college campuses, does not only benefit the claimants of affirmative action, but every person in that environment as well. For how could a more tolerant, sensitive, and open environment possibly truly harm economic, and more importantly, social progress?

As black viewers, we already recognize the awesome potential that black actors, writers, and directors have and believe that they are as entitled to represent and define their own experiences and exercise their creativity just as much as any other person.  When it comes down to it, as Undercovers’ Kudjoe stated during an interview, “It should be the norm, because that’s what the world looks like.”

In Jim Webb’s latest op-ed for the Wall Street Journal (titled “Diversity and the Myth of White Privilege“), he turns the traditional narrative for ending affirmative action on its head. Instead of using the same old racist platitudes, the Democrat from Virgina uses history and acknowledgment of structural inequality to propose a radical rethinking of government programs. But check the bait Webb uses:

I have dedicated my political career to bringing fairness to America’s economic system and to our work force, regardless of what people look like or where they may worship. Unfortunately, present-day diversity programs work against that notion, having expanded so far beyond their original purpose that they now favor anyone who does not happen to be white.

In an odd historical twist that all Americans see but few can understand, many programs allow recently arrived immigrants to move ahead of similarly situated whites whose families have been in the country for generations. These programs have damaged racial harmony. And the more they have grown, the less they have actually helped African-Americans, the intended beneficiaries of affirmative action as it was originally conceived.

My, my, my. Webb’s op-ed makes some very astute points but also trades on the idea that race is a zero-sum game. For this reason, the piece both succeeds and fails.

Webb provides great historical context in making his argument and often notes that the historical baggage of state-sanctioned discrimination is still with us. However, Webb distills our history down to black and white, noting:

The injustices endured by black Americans at the hands of their own government have no parallel in our history, not only during the period of slavery but also in the Jim Crow era that followed. But the extrapolation of this logic to all “people of color”—especially since 1965, when new immigration laws dramatically altered the demographic makeup of the U.S.—moved affirmative action away from remediation and toward discrimination, this time against whites. It has also lessened the focus on assisting African-Americans, who despite a veneer of successful people at the very top still experience high rates of poverty, drug abuse, incarceration and family breakup.

Those who came to this country in recent decades from Asia, Latin America and Africa did not suffer discrimination from our government, and in fact have frequently been the beneficiaries of special government programs. The same cannot be said of many hard-working white Americans, including those whose roots in America go back more than 200 years.

Webb doesn’t mention Native Americans, who are also currently suffering due to our nation’s founding and history.

Webb’s idea that remediation is needed for African Americans is true, and many of the current programs do not have as much benefit as hoped. However, America’s racial history doesn’t only spin on a black and white axis. Webb is correct that there is no parallel for what African Americans have experienced. But, while immigration laws may have changed the make up of the United States, many immigrants did face state sponsored backlash on their way to citizenship. And even if immigrants and their children find success on American shores, the story doesn’t end there – for example, much of the new data about Latinos denotes a difference between first, second, and third generation Latinos, because the data sets become quite different. Quite a lot of research is starting to reveal that third generation Latinos tend to slide backwards, reversing many of the gains their parents achieved. For example, a 2009 research brief exploring connections between work and school and black and latino youth, and how the rates of “connectedness” start to fall after the second generation. While the reasons for this vary, some studies point to assimilation as part of the issue – along with adopting societal norms, third generation Latinos keenly feel the impact of racism and discrimination in hiring and in other aspects of life.

Webb downplays exactly how much racism is woven into the fabric of society, and underplays how much other ethnic groups suffer under a racist system.

However, Webb does bring up an important point – there is a diversity of white experience in America that is not currently acknowledged or measured:

Generations of such deficiencies do not disappear overnight, and they affect the momentum of a culture. In 1974, a National Opinion Research Center (NORC) study of white ethnic groups showed that white Baptists nationwide averaged only 10.7 years of education, a level almost identical to blacks’ average of 10.6 years, and well below that of most other white groups. A recent NORC Social Survey of white adults born after World War II showed that in the years 1980-2000, only 18.4% of white Baptists and 21.8% of Irish Protestants—the principal ethnic group that settled the South—had obtained college degrees, compared to a national average of 30.1%, a Jewish average of 73.3%, and an average among those of Chinese and Indian descent of 61.9%.

Policy makers ignored such disparities within America’s white cultures when, in advancing minority diversity programs, they treated whites as a fungible monolith. Also lost on these policy makers were the differences in economic and educational attainment among nonwhite cultures. Thus nonwhite groups received special consideration in a wide variety of areas including business startups, academic admissions, job promotions and lucrative government contracts.

I can agree with Webb on a variety of fronts. However, Webb frames his entire piece as if racism is only a problem that faces African Americans, recent immigrants have no issues in society at all, and whites, once again, are getting the short end of the stick. This line in particular…

Also lost on these policy makers were the differences in economic and educational attainment among nonwhite cultures. Thus nonwhite groups received special consideration in a wide variety of areas including business startups, academic admissions, job promotions and lucrative government contracts.

…is eerily reminiscent of all the other critiques of “set-asides” disadvantaging whites and unjustly privileging people of color. And Webb never mentions that most business start ups are still helmed by white men (firms run by whites are 81% of small businesses, despite major pre-recession gains by nonwhites), that most people admitted to college are still white and upper-middle to upper class (the research on this is grim), that the managerial class in America is still predominantly white and male (check the EEOC numbers on private industry), and government contracts are still mostly funneled to companies helmed by white men (here’s a Native perspective on contract parity), even with all the other programs in place.

While I appreciated many Webb’s points, his overall analysis leaves me cold. It would be beneficial if policy makers revised many of these programs, since they are not benefiting African Americans in a substantial way. And it would be wonderful if the scope of research and policy reflected a more thoughtful discussion of sub-groups in general, especially since our racial categories (white, black, Asian, other, with Latinos as an ethnic group) as so broad and indistinct.

But Webb’s framing of the issue still ignores how many people do not believe African Americans are owed any sort of redress from the government, and his critiques minimize the impacts of racism on other nonwhite populations. We can agree on the need for government reform, particularly around the effectiveness of diversity programs and how they are proctored, but there needs to be a level of honesty as to how much racism and classim permeate society before we can make an accurate assessment.

I saw this short post on Time’s Detroit Blog today: Still Getting It Wrong on Affirmative Action. In it, blogger Darrell Dawsey comments about the recent news that civil rights groups in Michigan have brought an appeals case challenging the constitutionality of a rcent ballot measure banning the practice of affirmative action in Michigan state schools.

Dawsey doesn’t get into the constitutionality of affirmative action in his post; rather, he complains about the persistent perception of affirmative action as merely a “race thing”. Dawsey writes:

Yes, I think affirmative action is a palatable, if mild, remedy to the ongoing discrimination that women and people of color face in Michigan and around the country. But this take isn’t about cheering the court’s decision to hear the challenge to race preferences or even affirmative action itself, for that matter. Rather, it’s about the implications of the persistent, narrow belief that affirmative action is just a set of “racial preferences” — when the truth is that the biggest beneficiaries of affirmative action have been white women.

No, I’m not saying that  blacks, Latinos, Arab-Americans and Asian-Americans haven’t also benefited. (The University of Michigan, for instance, has 11 percent fewer minorities than in 2006, in part because affirmative action was outlawed.) But it’s the idea that these minorities, not white women, are disproportionately helped by affirmative action that inflames much of the opposition that we saw here three years ago.

I agree with Dawsey: affirmative action suffers a public relations problem. Affirmative action is frequently discussed in terms of race — both by proponents and opponents of the practice. Yet, the reality of affirmative action is far more nuanced: affirmative action not only is intended to benefit members of all underrepresented ethnic groups (Native Americans, and underrepresented Asians to name a few), but it also benefits applicants who come from other underrepresented backgrounds including class, gender, and faith.

The problem is the word “minority”, which in our society has become a codeword for “Black”. This is not only unfair, it is inaccurate: critics of “minority”-targeted initiatives present narrow-minded arguments that fail to accurately represent the full spectrum of people encompassed by the word “minority”. It paints reasonable and useful policies with a tinge of racial favoritism. And above all, it reinforces the notion of Blacks and Latinos as the bottom rung of our social hierarchy, rather than one of many underprivileged yet deserving minority groups.

That being said, I’m not sure that Dawsey gets it right with the point of his post. Dawsey argues that opponents of affirmative action, in colouring (pardon the pun) the debate as a “race thing”, are motivated by racial hatred in their opposition.

Many who voted against affirmative action had it in their heads that black people and other minorities were somehow getting something they didn’t “deserve” or were receiving “something for nothing.” Sure, some will howl that I’m wrong — that affirmative action opponents were driven solely by noble desires for “fairness” and “equality” — but I’m not. I’ve lived in Detroit much of my life. And I know well that even though many of us here consider it uncomfortable or impolite to discuss race when talking about why metro Detroit is what it is — and that includes its standing as one of the most segregated metropolitan areas in the U.S. –  intense racial hatred remains alive and well.

While racism is clearly alive and well in today’s America, I’m not sure what use there is in characterizing the majority of affirmative action’s detractors as seething racists. Clearly, there is a perception that underrepresented minorities are being accepted despite the appearance that they are ”less qualified”, but I simply don’t believe that all or even most of affirmative action’s critics are primarily fueled by this misconception.

Affirmative action is a tough issue: neither side has a clear, moral (let alone legal) stance to advocate. Even proponents of affirmative action admit it is an imperfect (dare I say “band-aid”?) solution to a tough societal problem. To over-simplify the other side as racists does nothing to improve the quality of the debate on affirmative action, and turns the whole thing into finger-pointing and name-calling.

When I hear the words Ellis Island, one of the first things I think of is not the New York point of interest or tiring travel across waters to reach the grand goal of the U.S. of A. and its related Dream. The first words that come to mind for me are “name changes” and “assimilation.” But with the recent economic crisis and the lagging recovery process, Ellis Island comes to mind. Only this time, instead of Eastern Europeans, Italians or the Irish knocking on the door of American opportunity, only to learn that their identities must be altered or ensconced, their traditional cultures erased for the sake of infinitely approaching some Nordic white ideal, the group scrambling for the promised land of economic security and job market acceptance is black.

That’s not to say that blacks in America have never sought assimilation as a means of achieving social acceptance and equality, in fact both during and following slavery, some black Americans employed various methods of mirroring the white majority as they recognized it could mean a chance at social and class mobility. Black immigrant groups arriving to America also faced a similar challenge. Having lived in countries where race-based terminology and categorization, media representation, and general opinion of blacks may have varied from those in the United States, only to arrive and gain an externally-defined identity based on perceptions of black Americans, black immigrants may also have felt or still feel the pressure to change or deny elements of their culture, nationality, ethnicity, and ultimately race.

In the aftermath of the recession, as the competition for the limited jobs that are available has sharpened, few applicants have room for error. Unfortunately for blacks living in the United States, one possible means of avoiding the potential disaster of not even getting a foot in the door at hiring companies is deleting any and all signs of their race. It is common knowledge that “ethnic sounding” names or, in other words, names that are not of Western European, particularly Anglo-Saxon origin, often lead to discriminatory hiring practices.* Even among these names, there are specific ethnic groups whose names are least welcome in the corporate world. Unfortunately, blacks are often the common victims of this discrimination, the bearers of African-American names, despite their qualifications, often being relegated to the bottom of the résumé stack. 

However, most of the fears of being rejected from job opportunities are spread through anecdotes or are the result of self-fulfilling prophecy based on a perception of inadequacy from simply being black (i.e. assuming the hiring party is white and would not be interested in taking on a black employee, thus not applying for the job at all), research often following as a result. Several studies comparing the successes (or lack thereof) of blacks and their white peers have been conducted (particularly as a means of measuring the success of affirmative action policy implementation and its continued need), though all ended with the same result: even with equal levels of educational and occupational experience, white candidates are more likely to be hired following the interview process than blacks.

In light of these studies, the pressure of being hired during a recession, and the discrimination based on racial markers as mentioned above, the New York Times recently released an article on history repeating itself entitled “In Job Hunt, College Degree Can’t Close the Racial Gap.” In the article, one of the few attempts made by the Times to report on the effect the recession has had on those other than wealthy whites, author Michael Luo points out with frank honesty that the push for obtaining a college degree has done little to help blacks gain footing as they compete with other applicants. Any indication of their blackness on their résumé alone could be a hindrance to their job search success.

Noting the false sense of temporary confidence Obama’s success in being voted the nation’s first black President may have given Americans of all colors in terms of progress and hope for race relations, Luo explains that little has changed when it comes to racial inequity:

That race remains a serious obstacle in the job market for African-Americans, even those with degrees from respected colleges, may seem to some people a jarring contrast to decades of progress by blacks, culminating in President Obama’s election.

But there is ample evidence that racial inequities remain when it comes to employment. Black joblessness has long far outstripped that of whites. And strikingly, the disparity for the first 10 months of this year, as the recession has dragged on, has been even more pronounced for those with college degrees, compared with those without. Education, it seems, does not level the playing field — in fact, it appears to have made it more uneven.

Luo goes on to profile applicants who have resorted to referring to themselves in their résumés by names that they normally do not use:

. . . Barry Jabbar Sykes, 37, who has a degree in mathematics from Morehouse College, a historically black college in Atlanta, now uses Barry J. Sykes in his continuing search for an information technology position, even though he has gone by Jabbar his whole life.

“Barry sounds like I could be from Ireland,” he said.

This quotation by Mr. Sykes struck me as particularly ironic, and fit quite appropriately with my note that the process of “cleaning up” one’s ethnic identity in the present is a sign of social regression in the race relations continuum, particularly considering that the Irish once received considerable discrimination for not being quite the right type of white, if white at all. During the same time of the largest immigration of the Irish population to the Americas (1845-1849 as a result of the Great Famine), Dred Scott was suing for his freedom and his trial was going through state courts, and two decades later, black American slaves were given their freedom with the Emancipation Proclamation and the Thirteenth Amendment. Now, in 2009, a black American man hopes his name sounds more like that of one of the immigrants who were socially on as low a level as many of their black peers.

But with the unemployment rate for college educated black males 25 and older being double that of their white peers, 8.4% to 4.4%, respectively, the push to erase one’s blackness goes beyond name changes. Applicants have noted that any mention of black business associations, black fraternities and sororities, and any experience that may somehow hint at one’s racial background (i.e. writing for a black issues blog) could prove hazardous. To make matters worse, Luo notes, even Asian-American and Hispanic managers are more likely to hire whites than blacks. That is not to say that someone of non-white (Anglo) racial or ethnic origin should feel obligated to hire someone who is also nonwhite, but the fact that these practices reach beyond white managers and are committed by those who could potentially be more empathetic is alarming.

Other applicants in Luo’s article mention that if and when they get beyond the application stage and are actually called in for an interview, their chances at being hired do not increase. In fact, in-person interviews sometimes lead to more problems such as outright discrimination, shock and surprise that the applicant is black, and ultimately rejection for the position despite presumed stellar interviews and excellent applications. The rejection can be without motive, leaving the applicants to second-guess not only their skills, but also whether or not their race played a role in their not being hired:

Whether or not each case actually involved bias, the possibility has furnished an additional agonizing layer of second-guessing for many as their job searches have dragged on . . .

Many interviewed, however, wrestled with “pulling the race card,” groping between their cynicism and desire to avoid the stigma that blacks are too quick to claim victimhood. After all, many had gone to good schools and had accomplished résumés. Some had grown up in well-to-do settings, with parents who had raised them never to doubt how high they could climb.

Luo also mentions the impact of networking and connections that go beyond the typical hiring process. In spite of blacks becoming part of the ever-expanding American middle class as a result of more educational opportunities since the Civil Rights Era and subsequent increased inclusion in the workforce, one of the most damaging residual effects of segregation and social exclusion from whites (Jim Crow, anti-miscegenation laws, ghettoization of the black urban population by way of discriminatory housing laws and restricted covenant, racial profiling and imprisonment, etc), has been the fragmentation of black and white populations’ interaction (even with the end of its legal prohibition). By way of stigmatizing (legally and socially) black and white interaction, whites continued to align themselves with their own social networks and blacks were left to form their own, albeit less validated, community-based social networks and connections.

Edward Telles, author of Race in Another America: the Significance of Skin Color in Brazil, an amazing text based on his comparative studies of race relations in the United States and Brazil, notes that “Recent research in economic sociology shows that hiring, even in the modern employment sector in the United States, continued to be governed by social-network ties” (Telles, 163). I found that Telles’ observations about the Brazilian job market and related hiring practiced greatly mirrored those of the United States as reported by Luo:

Most recruiting and hiring for these jobs used networks and patronage systems. Such informal methods favor whites, so that employers often do not directly deny jobs to nonwhites. Rather, blacks and browns [note: people of multiracial backgrounds that include some percentage of African heritage] seem to be discriminated against by being denied access to these networks or they are less likely to know job sponsors. When they do have access, job sponsors and networks are likely to screen out nonwhites, and especially blacks, themselves. Job sponsors may mostly recommend other whites because they themselves prefer whites or assumer employers prefer whites. Similar, persons in networks with information about jobs, including those who currently hold such jobs, are also likely to recommend whites, especially because it may enhance their own status in the eyes of their employers. (Telles, 162)

In short, even before blacks can apply for a job, it is more likely than not to be discussed amongst and filled by whites. This is what might be the most frustrating aspect of the problem. The issue itself is hard to resolve simply because a big portion of the discrimination occurs by way of silent and often unintentional exclusion. Bias does not always play a direct role in the hiring or rejection of an applicant. Though hopefully with the continued participation of blacks in higher education and the corporate world, the networks can expand to include blacks or, at least, following the older model, blacks can continue to construct their own networks as a means of gaining acceptance into the higher levels of the formal labor sector.

One fear, however, is that such findings can be discouraging in terms of morale, possibly making self-fulfilling prophecy a recurring theme in the daily lives of black Americans. Another fear is that assimilation by way of identity erasure may become a normative means of achieving success, which is disturbing considering the advances so many people of color (including, but not limited to, blacks) have made without having to resort to it. What could this mean for future generations of blacks, and further, incoming immigrant groups to the United States, where pluralism is an accepted method of both governance and social interaction (at least, in public)? In some ways, is this fear of being initially “outed” as a nonwhite racial other, particularly a person of African descent, a sign that an American identity is being tightened in the wake of economic crisis?

*for more information, please refer to the study “Are Emily and Greg More Employable than Lakisha and Jamal?” from The American Economic Review

(Image: “Melting Pot” political cartoon)

This post is broken into two parts for the sake of length:
- Anti-Asian Bias in College Admissions?: Part 1 – An improper comparison
- Anti-Asian Bias in College Admissions?: Part 2 – In support of affirmative action

Searching for “anti-Asian bias”: evidence of its existence

Espenshade presents data showing that acceptance rates to public and private institutions are universally lower for Asian American applicants compared to White applicants. I have graphed the appropriate data from Table 3.3 of Espenshade’s study below:

These data are striking. Neither Whites nor Asians benefit from affirmative action, and Whites and Asians share similar class distributions. Yet, Asian applicants are roughly 10% less likely to be accepted to private colleges, and nearly 15% less likely to be accepted to public institutions, compared to their White counterparts. The decreased acceptance rate holds true despite the fact that Asians are far less likely than applicants of other races to apply to public institutions — yet, unlike with the Black and Latino populations where reduced applicant rates explains, at least in part, high acceptance rates, the same is not true for Asian/Asian American applicants.

By all rights, since neither White nor Asian applicants benefit from affirmative action, our acceptance rates should be about the same.

All else being equal the reduced applicant rates could be due to one or a combination of the following explanations:

1. Asian applicants, on the whole, have poor “breadth” qualifications that reduce the quality of their applications, e.g. music, art, a second language, etc.
2. Asian applicants tend to be first and second generation, whereas White and Black applicants tend to be third, fourth or higher generation Americans (see Table 3.6 on page 7), making Asian applicants less likely to benefit from high acceptance rates for legacy students (Table 3.1 on page 2).
3. Asian applicants are more likely to be international, and do not benefit from higher ”in-state” or “domestic” acceptance rates.
4. There is a currently unaddressed anti-Asian bias in the admissions process.

Most of these possibilities are not addressed (or debunked) by Espenshade’s study. Thus, at this time, it’s possible to conclude that there is anti-Asian bias in the admissions process, but it’s not the kind of anti-Asian bias that has been used to launch attacks against affirmative action. Instead, Espenshade’s data suggests that there Asian/Asian American applicants might face unequal treatment, compared to White applicants, when applying for institutions of higher education.

Perhaps this manifests as admissions boards wanting to limit the size of their Asian American student population and therefore specifically choosing White applicants over similarly-qualified Asian applicants. Alternatively, perhaps we’re seeing a manifestation of an internalized (and institutionalized)  model minority myth which makes it more difficult for Asian applicants to demonstrate “breadth” qualifications (that are nonetheless present in the application) because we are being perceived by the admissions review board as math, science or engineering nerds. Regardless, the possibility that Espenshade’s data are uncovering evidence of anti-Asian bias in the admissions process to public and private colleges warrants further study.

In support of affirmative action

Studies like Espenshade’s have been used by right-wing conservatives to attack affirmative action. And certainly, Espenshade’s data show that acceptance rates are not the same between under-represented and well-represented racial groups. But the question remains: should those rates be equal?

Proponents of ending affirmative action argue that each applicant, regardless of race or class, should have the same acceptance rate as any other applicant. And this might make sense — if applications could really be equally judged across race and class. However, as I’ve mentioned, debate rages on as to whether so-called “standardized” tests are truly standardized, or if they suffer from cultural bias. Without a federalized public high school system, the meaning behind high school GPAs also vary from district to district, and from state to state. In other words, getting straight A’s in one school might not get you straight A’s in another.

In addition, being from an upper-class background affords opportunities that lower-class applicants don’t have access to. Applicants from wealthy families can afford to enroll in expensive prep schools that specifically train students to get into college — even if they aren’t necessarily smarter than the poor kids who can’t afford private school tuitions. In addition, wealthy applicants can afford to pay the expensive application fees such that they can apply to multiple schools; poor students are limited to applying to schools with low application fees or to a fewer number of schools, reducing their chances of admittance.

Affirmative action is intended to address the disparities and unequal opportunities for applicants, and to make admission to higher education more accessible for disadvantaged applicants. But, more importantly, affirmative action policies exist to make a more diverse student body.

Consider this: in the state of California, where affirmative action practices have been out-lawed, the racial demographics in state colleges and universities have only become less representative of national demographics. Comparing students by race/ethnicity in the total UC system in 1993 against the same data collected in 2008 (Table 7k), we see that Asian American students now make up more than 40% of all undergraduate students, while the percentage of White, Black and Latino students decreased over that time period.

Not only are underrepresented minority groups languishing without affirmative action in place in the California school system, but students of well-represented racial/ethnic groups are also suffering due to these disproportionate student populations. Anti-affirmative action fundamentalists and fervent Asian American nationalists might applaud that nearly half of UC students are Asian American, but I propose that this actually diminishes the quality of education that our Asian American students have access to.

Academia is about developing a forum of discussion, argument and debate; where a free-flowing exchange of ideas can take place. This can only occur in a diverse populace where students are exposed to unique ideas originating from a multiplicity of different perspectives and backgrounds. When nearly half of all people that a student can meet in class come from a similar background, the student loses the opportunity to have his or her worldview challenge. Without that kind of an education, one must question how prepared these college students are to face a racially, ethnically, and economically diverse reality upon graduation. Perhaps more so than any other institution, colleges and universities need affirmative action in order to survive.

Summary

Getting into college isn’t easy; and it’s not supposed to be. We have to recognize that no one can — or should be allowed to — skate into college, and that the same difficulties and frustrations you feel with the admissions process of your favourite undergraduate institution are felt by high school students across the country, regardless of race, class or gender. When you get in, you feel on top of the world; but if you don’t, often you feel like the process was unfair and biased.

The argument against affirmative action in colleges is too-often made by groups who feel entitled to higher education, and who can’t abide by the fact that they should have to work for it (and to prove themselves) just like everyone else. And the classic “anti-Asian bias” argument that touts facts and figures comparing acceptance rates for Asian/Asian Americans against those of minority groups underrepresented in higher education only pits minority groups against one another while propping Asian Americans as the token “model minority”.

Rather than to blindly accept a charged, politically-motivated, and misleading interpretation of college admissions data (often collected in good faith by well-meaning scientists like Espenshade), it’s important to consider studies like those presented above carefully. I think there is evidence here that Asian Americans experience anti-Asian bias in the college admissions process. Nothing to date addresses the unequal acceptance rates between White and Asian students, despite a lack of difference in treatment by affirmative action policies, and despite similar application rates. More studies must be done to figure out what’s behind those disparate admissions probabilities.

But does that mean that Asian Americans aren’t benefiting from higher education? Hardly. Around the country, Asian Americans are better represented on college campuses than we are in the national population. And while some Asian ethnicities remain underrepresented, on the whole, our community is churning out well-educated degree-holders who are entering the skilled workforce en masse.

So, if you’re an Asian American high school student applying to college, remember the following: the admissions process will be difficult, but with decent grades and SAT scores, and with diverse interests in music, drama or another language, you’ll find a great college. Ask for help in preparing your application — clearly, there are lots of Asian Americans out there who have been through this process. And, above all, don’t limit yourself to the elite schools that are receiving tons of Asian American applicants: make sure to apply to a few less well-known or public schools, even just as a back-up.

Because here’s the final piece of advice I have, and it’s one that some people don’t want to vocalize: In the end, it’s not about what school you get into (or how you get in, whether by affirmative action, legacy, athletic scholarships, or if you speak six languages and are a world-renowned kazoo player) – it’s about how well you succeed once you get there.

The rest of it’s just getting your foot in the door. What happens after that is up to you.

This post is broken into two parts for the sake of length:

• Anti-Asian Bias in College Admissions?: Part 1 – An improper comparison
• Anti-Asian Bias in College Admissions?: Part 2 – In support of affirmative action

Since the implementation of affirmative action in the college admissions process, opponents of the policy have alleged anti-White and anti-Asian bias that reduces the chances of White and Asian high school students applying to elite colleges. Recently, a study conducted by Princeton sociologist Thomas Espenshade (published in the book No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life) presented data that appear to support this notion.

First of all, I should point out that the primary data Espenshade analyzed were collected in 1997. But, it’s likely that the trends that Espenshade report remain in effect, since there have been no major changes to the college admissions process nationwide since then, nor have we seen significant changes in student demographics.

The “Scary Graph”: what does it mean?

Espenshade shows that middle class Asian students have a reduced probability of being accepted into private universities compared to students of other races (I re-created the graph below from page 7 of this presentation of Espenshade’s data, eliminating upper- and lower- class students, but the trends are roughly the same).

This graph looks pretty alarming until you consider the following applicant demographics, compared to national demographic information:

What this graph is showing you is that while Asian Americans are roughly 4% of the U.S. population, we represent nearly a quarter of all applicants to the institutions studied by Espenshade. For some universities, this can reach as high as 1/3 — and many of these applicants boast high SAT scores and high school GPAs. Many of these students also come from higher-income families compared to Black and Latino applicants, and therefore have access to better educational opportunities to help improve their scores. In addition, Espenshade’s data show that, compared to other races, Asian American applicants appear to preferentially apply to private institutions, which causes an even more dramatic increase in our applicant number.

Basically, the admissions percentage is low for Asians is at least in part because so many college applicants are Asian/Asian American. You can think of it this way: if 50 White students, 25 Asian students and 5 Black students are accepted to a college, but there are 100 White applicants, 75 Asian applicants and 10 Black applicants, your probability of being accepted based on race is as follows: 50% for Whites and Blacks, and only 33% for Asians — even if the absolute number of acceptances are still higher.

And certainly, we must remember that Espenshade’s study does not consider non-numerical aspects of applicant portfolios; admissions boards often favour applicants who have acceptable scores but who have also demonstrated a diversity of talents or interests, including music, athleticism, or art.

But what can’t be denied from Espenshade’s data is this: if you’re an Asian American high school student, you are competing against a lot of other, highly-talented White, Black and Asian American applicants and you have a lower probability of being accepted based on race compared to applicants of other races.

But does this mean there’s “anti-Asian bias”?

Searching for “anti-Asian bias”: an improper comparison

I caution against coming to the conclusion that Asian Americans are patently discriminated against in the college admissions process. Instead, I think what we’re seeing is the flip side of affirmative action: affirmative action argues that, all other factors being equal, an applicant who is a member of an underrepresented minority (whether race-based or class-based) will be preferred over a similar candidate who is not of an underrepresented minority.

And Asian Americans are anything but underrepresented in higher education. This columnist pulled racial demographics at Ivy League institutions from CollegeBoard.com and found that at all of these colleges, which practice affirmative action in their admissions processes, Asian/Asian Americans are over-represented compared to our national demographics:

Clearly, college admissions board aren’t outright refusing Asian American applicants based solely on race. In fact, even with affirmative action in place, Asian Americans are four times better represented at elite universities compared to our national population.

What this also means, however, is that because Asian Americans are so well represented in higher education, there is no racial “preference” for Asian/Asian American applicants based solely on race (Espenshade’s data shows high probability of acceptance for lower-class Asian Americans, which hints that less well-represented Asian ethnicities who also tend to come from lower-income families are still beneficiaries of affirmative action). Thus, we cannot compare the probability of acceptance rates for Asian Americans against those of underrepresented minorities; with affirmative action in place, those probabilities will — by definition –be higher for Black, Latino and Native American applicants. It’s not that we’re being biased against in affirmative action practices, it’s simply that we’re not benefiting from affirmative action — nor should well-represented Asian ethnicities be beneficiaries of affirmative action.

Nonetheless, this kind of comparison is tempting, because it is fueled by the entitlement complex that those who are not underrepresented minorities tend to feel. An Asian American applicant, who scores highly on his or her SAT test expects to be accepted, but, when they do not get in compared to a Black or Hispanic Non-White applicant who does, they feel as if life’s unfair. How often have applicants to college (or law school, or medical school) complained that “less qualified” minorities are skating through the admissions process on the back of affirmative action policies?

The bottom line is that underrepresented minorities are not skating through the admissions process. Universities will only accept applicants that meet a certain minimum standard for GPA and SAT — so no student, be they Black, White or Asian, accepted into college is actually unqualified. Moreover, the characterization of lower-scoring applicants who are accepted into college based, in part, on affirmative action relies on the assumption that SAT scores directly correlate with success in college life: yet, studies on the effectiveness by which SAT scores predict college success remain conflicted on whether the SATs are truly a good indicator that an applicant is “qualified” for college life. In addition, critics of the standardized tests argue that the SAT and other tests are culturally biased, and that higher-class applicants fare better in part because they can pay for test-taking prep classes that help them achieve a higher score. In other words, someone who scores a perfect score on the SATs may not actually be “better qualified” than another applicant who scores lower. Moreover, scoring highly on the SATs does not guarantee acceptance into top schools; schools nowadays emphasize breadth as well as depth, and seek out applicants who do well academically while pursuing diverse, non-academic interests.

Because of unequal opportunities that unfairly disadvantage Black and Non-White Hispanic students in college admissions, affirmative action seeks to improve representation of these minorities in each incoming student body, by preferentially choosing the underrepresented minority student when compared to a student of similar standing who is not underrepresented. As far as I can tell, this is one of the few ways affirmative action is put into practice, based on the ruling by the Supreme Court  that found explicit racial quotas unconstitutional.

Thus, because neither Whites nor Asians are underrepresented on the campuses of elite universities (and thus don’t benefit from affirmative action), comparing acceptance rates for Asians against beneficiaries of affirmative action is an erroneous comparison specifically designed to whip up anti-affirmative action sentiment. It ignores the fact that Asian Americans remain, even with affirmative action, well-represented on college campuses. It uses “Scary Graphs” (like the first one in this post) to raise hysteria and resentment between Asian/Asian Americans and other racial minorities, ignoring the fact that with affirmative action in place, we know those acceptance rates will not be the same.

Instead, to determine if there is any “anti-Asian bias” in the admissions process, we should really be comparing the acceptance rates of Asian/Asian Americans against the other “non-beneficiary” group: Whites.

On April 22, the Supreme Court will hear arguments in the case of Ricci, et. Al, v. DeStefano, et al., a case brought by seventeen firefighters who claim that they were discriminated against by the City of New Haven after the City decided to throw out the results of a required advancement exam. The New York Times story notes:

Mr. Ricci did well, he said, coming in sixth among the 77 candidates who took the exam. But the city threw out the test, because none of the 19 African-American firefighters who took it qualified for promotion. That decision prompted Mr. Ricci and 17 other white firefighters, including one Hispanic, to sue the city, alleging racial discrimination. [...]

The city says it was merely trying to comply with a federal law that views job requirements like promotional tests with great suspicion when they disproportionately disfavor minority applicants.

“The fact of the matter is it’s a flawed test,” said Victor A. Bolden, the city’s acting corporation counsel.

Mr. Bolden added that he had sympathy for Mr. Ricci. “There’s no question that there are people who are disappointed,” he said. “But disappointment doesn’t lead to a discrimination claim.”

The promotion exam was offered in the fall of 2003, and no one has been promoted since, Mr. Bolden said.

The suit brought by Mr. Ricci and his colleagues says that the city’s rationale for throwing out the test is illegitimate and that they were denied a chance for promotion on account of the color of their skin.

Since this made the Court’s docket, it officially became a matter of serious weight. I called together some of the other correspondents and we had a chat about what this case means, what it could mean for industries that seem to just stay segregated, and the unanswered questions we still have after examining the available briefs and news articles. – LDP

Fatemeh: So I don’t feel like I have anything to weigh in on this “reverse racism” fuckery.

Latoya: Why?

Fatemeh: Because I feel like there are angles I’m not seeing. But also because I can’t get past the technicalities: no one was actually denied from having a job because of his race.

Latoya: Makes sense. I wonder if that’s why everyone else is hesitating. Even Carmen is hesitant to comment.

Fatemeh: Yet “African-Americans held 32 percent of the entry-level positions in the Fire Department in 2007, according to data compiled by the city, but only 15 percent of the supervisory positions.” That makes it sound (to me) like there aren’t equal opportunities for advancement for black firefighters.

Latoya: Is the test racially biased? Because that’s part what is being argued. I wonder if the court will maintain that testing measures are colorblind, and therefore race should not be a consideration.

Fatemeh: I’m sort of skeptical that the test is colorblind. Some guy in the story is like, “You learn everything you need to know on the job here.” With that reasoning, everyone should have the same amount of knowledge when they take the tests, and everyone should do about the same, right? So a few outliers who have better training, or worked harder to study, or whatever, will get higher scores and be promoted. So if the test is not racially biased, then black firefighters would score similarly to white ones.

Latoya: True. And that’s what also makes this so weird. What I am concerned about is that this could easily set a precedent for hiring decisions and ideas.

Fatemeh: Exactly.

Latoya: If they decide whites are unfairly discriminated against for their achievements, what kind of messages will that reinforce?

Fatemeh: Straight-up white privilege. “I worked hard to get where I am!” Of course you did. But why did you advance, when your black coworker worked just as hard (or harder) and hasn’t gotten where you are?

Latoya: How will it impact the advertising industry, that has been hit with civil rights cases but still maintains a heavily white workforce? Are they off the hook now?

Fatemeh: I’m confused; how do you link the ad industry to this?

Latoya: A Supreme Court decision has long reaching effects. This isn’t just going to impact firefighting. It impacts anything with a racial disparity component. So in predominantly white industries, I am concerned that if the court comes down on the side of the plaintiffs, it will deliver other industries a get out of jail free card.

Fatemeh: Okay, I get you. The ad industry is a huge example of a racially disparate workforce.

Latoya: Industries that have been proven to be discriminatory may be able to take this law and twist it to maintain the status quo.

Fatemeh: I see your concern now, Latoya. Do you think there would be a way to prove that the test is racially biased? Could they offer up numbers of black supervisors compared to white ones, even though the black & white populations in the department aren’t drastically different?

Thea: I read this “The city says it was merely trying to comply with a federal law that views job requirements like promotional tests with great suspicion when they disproportionately disfavor minority applicants.” and I was glad that the city is so proactive about tests that produce racially disproportionate results.

At the same time – and maybe this is out of character! – I feel for the guys who studied hard, did well, and then had their tests thrown out. I don’t think it’s accurate for them to call discrimination; i.e. say that they have been disadvantaged on the basis of their race. However I do agree that it’s not totally fair. There’s a difference right, between something that is unfair and something that is unfair on the basis of race?

This just seems like such a mismanagement on the part of the system. It creates divisions between ethnic groups. Again I don’t think the white firefighters had grounds to call discrimination, but I think they had the right to be pissed off and complain about it.

I dunno, it’s a weird case and I see why people are hesitant to speak about it. Yes it was unfair, but I also agree with you Latoya that it could set precedents that will get twisted around.

Incidentally I’ve heard that the majority of the human rights complaints filed to the Ontario Human Rights Commission are filed by straight white male professionals…

Latoya: Thea, agreed. I can definitely feel the frustration there – but I’m not sold that in it self constitutes racial bias. Art, what do you think about the case?

Arturo: One thing that stuck out the most:

This test and the department handling of it seem to be very flawed going in — the minority failure rate going in should have been raising flags before this case went up the flagpole.

Latoya: Here’s something else that had me come up short, reading the [NYT] article:

“In a brief supporting the white firefighters, the National Association of Police Organizations saw the injection of racial politics into public safety. Promotion decisions should be based on merit, the group said. Race-neutral decisions foster camaraderie and a sense of fairness, it added, saying that people who work in public safety “are, in the main, effectively colorblind.””

Latoya: Maybe I’m just a little jaded.

Fatemeh: Red flags go off when I hear the word “colorblind.”

Latoya: But I don’t trust the fact that people who work in public safety are colorblind. Not police. Not social workers. Not the people who decide ecologically unsafe materials go into minority neighborhoods.

Fatemeh: Exactly! This colorblind bull isn’t really fooling anybody!

Arturo: I’d love to have seen somebody from NAPO get called to the stand to prove that remark.

Latoya: Yeah, especially post Oscar Grant. There are still major issues with discrimination.

Fatemeh: Mm-hmm. This whole case seems kinda sketch.

Arturo: Not to mention the Court it’s going to. I shudder at the thought of Antonin Scalia writing about this.

Latoya: Word.

Fatemeh: OH, sweet gawd.

Latoya: Justice Roberts seems to be of the mind that if we all ignore the issues of race and discrimination, they will magically vanish.

Arturo: Another question: why would NAPO, in effect, ignore the findings of the International Assn. of Black Firefighters?

Fatemeh: I wish we knew more about this precinct. Ricci was #6, so he wouldn’t be the in the top five considered for promotion. If he doesn’t even get to be promoted, why is he fighting for this? Are any of the “top three” in this class-action? I wonder if there are race issues in the precinct that we don’t know about. Why go to the Supreme Court?

Latoya: We should try to get a look at the actual brief, if possible – though reading it would be a pain. The court gets that stuff delivered in boxes. Let me do some poking around – continue discussing.

Arturo: I’d want to look at the test — even the story says it uses inaccurate terminology

Fatemeh: I’ve been watching a lot of CSIs lately. I feel all sleuthy!

Arturo: Fatemeh’s got her Caruso shades on!

Latoya: Do you both think that the people who brought the case were motivated by racial resentment?

Arturo: Odds are at least some of them are

Fatemeh: Exactly.

Arturo: But there’s a disconnect here: Where does “this test is flawed” take you to “this test is biased against white people”? And where did the plaintiffs place with their results? I’d hate to think they’re making Ricci the poster boy because of his condition, but people are strange …

Fatemeh: It goes back to the “reverse racism” idea: groups of color are being given extra handouts, blah blah blah

Arturo: I’d like to know about admission standards for the NHFD. How do you let people in if you don’t think they can work their way up?

Fatemeh: Frankly, I don’t like the way the NYT framed this case. “Here’s poor Mr. Ricci, who’s worked so hard but is being denied a promotion by the big-bad PC city!”

Latoya: Fox News is going to have a field day with this

Latoya: <---looking for the SCOTUS blog post on this

Arturo: Fox: “We interrupt our live coverage of the Tea Parties to bring you NEW HAVEN UNDER SIEGE!”

Fatemeh: TEA PARTIES! AHAHAHHAA

Latoya: lol

Fatemeh: I’d love to see this article written from the other angle. “Jeffrey Simmons has worked at the NHFD for eighteen years. He’s been angling for a promotion for seventeen of those years. But the city’s discriminatory tests have kept him from advancing for those same seventeen years.” Booyakasha!

Arturo: The test itself is the key. How is nobody passing it? I would have thought performance was the biggest marker in this kind of job. Or maybe I watched “Backdraft” too many times.

Latoya: Whoa, I need to read the SCOTUS blog more often

Docket:08-833 Title: Oliver v. Quarterman Issue: Does juror consultation of the Bible during sentencing deliberations deprive a defendant of Sixth Amendment rights and what standard of proof should apply in evaluating the possible prejudice to the defendant?

Latoya: Damn. Anyway, back to searching…

Fatemeh: It sort of tickles me that SCOTUS has a blog. I wonder if they’re on Twitter? (giggle)

Fatemeh: “RBGinsburg is rolling her eyes at Scalia for the 8,000 time today.”

Arturo: bwaha

Latoya: lol

Arturo: “Antonin Scalia would rather be hunting duck”

Latoya: lol

Fatemeh: HA!

Arturo: The more I think about it, the more NAPO supporting the plaintiffs bugs me. Nice message to send your members of color.

Latoya: The message they’re sending is “You’re next.” Remember, SCOTUS sets precedents.

Latoya: WTF? Reading Scalia’s opinion on the Navajo’s claim for compensation:

“For over 15 years, the Indian Tribe known as the Navajo Nation has been pursuing a claim for money damages against the Federal Government based on an asserted breach of trust by the Secretary of the Interior in connection with his approval of amendments to a coal lease executed by the Tribe. The original lease took effect in 1964. The amendments were approved in 1987. The litigation was initiated in 1993. Six years ago, we held that “the Tribe’s claim for compensation . . . fails,” United States v. Navajo Nation, 537 U. S. 488, 493 (2003) (Navajo I), but after further proceedings on remand the United States Court of Appeals for the Federal Circuit resuscitated it. 501 F. 3d 1327 (2007). Today we hold, once again, that the Tribe’s claim for compensation fails. This matter should now be regarded as closed.”

Fatemeh: That is fucked. Up.

Latoya: They go on to say the federal government cannot be sued without their consent. Damn. Who consents to be sued?

Arturo: WOW

Fatemeh: Wha…?

Fatemeh: I feel like my head is gonna explode.

Latoya: Let’s talk a little about the role of institutional bias in these kinds of decisions.

Arturo: Are we talking about bias from the city side, or within the FD?

Fatemeh: I mean, the nat’l firefighter association is backing Ricci, the chief justice is getting all huffy about ending racial discrimination by ignoring it…

Latoya: <---heading to the SCOTUS wiki

Latoya: SCOTUS wiki FTW! http://www.scotuswiki.com/index.php?title=Ricci%2C_et_al._v._DeStefano%2C_et_al.

Latoya: all the docs, the brief, the overview

Arturo: I hate that the angle here is, “well, we just don’t wanna get sued.” (ironic, though, isn’t it?)

Latoya: LOL, very much so. And yes, this really isn’t a case motivated by justice.

Arturo: What the hell is a Concerned American Firefighter? Nevermind, i see it now: white people.

Latoya: The Anti Defamation league supports neither party. Interesting. Wonder why?

Latoya:

“The ADL has endorsed limited racial preferences in order to remedy specific discrimination, it has repeatedly opposed the non-remedial use of race-based criteria, except under highly limited circumstances in the educational context where the government can identify a compelling interest to justify them, and has narrowly tailored their use to meet those legitimate interests.”

New Haven thus far has not been put to its proofs as to whether it has a compelling interest in scrapping the test results – that is, whether, under the facts of this case, there was a “strong basis in evidence” that it would have been subject to Title VII liability. The record as it now exists leaves unresolved questions that require resolution by the District Court.

Arturo: Hm.

Latoya:

When government uses race as a decisive factor in allocating opportunity or benefits, and ignores merit and classifies people based on immutable characteristics, it violates core vales of equal protection. Even in higher education, one of the few areas in which this court has been willing to permit some limited use of race, the means by which it may permissibly be considered is far more nuanced than the approach New Haven used here. Thus, in Grutter, The University of Michigan’s Law School was allowed to take race into account in its admissions.

Latoya:

As one component of a “highly individualized, holistic review” that focused on each applicant’s talents, abilities and background. GRUTTER, 539 U.S. at 337. The process did not run afoul of equal protection because it used race as just one factor; the individualized nature of that inquiry being deemed of “paramount” importance. (In contrast, Michigan’s Undergraduate Admissions System, which essentially awarded “bonus points” to minority applicants, was struck down for doing just that, in the companion case of Gratz V. Bollinger, 539 U.S. 244 (2003)).

Latoya: Good point.

Arturo: “Highly individualized” I get, but “holistic”? What an odd choice of words.

Latoya: It is. The ADL seems very pro-Ricci. I’m wondering why they have declined to support either party.

Latoya:

Another equal protection case involving public safety promotions, Cotter v. City of Boston, 193 F.sUPP.2D 323 (d.mASS. 2002), AFF ’D. IN RELEVANT PART, 323 F.3D 160, 172 & N.10 (1ST CIR. 2003), illuminates what that inquiry might look like. In Cotter, eight white Boston police officers challenged the promotion of three African American officers who received lower scores on the promotional exam for Sergent. Boston cited three interests it claimed were sufficiently compelling to justify its move: the operational impact of having a racially diverse police force, the need to remedy past discrimination within the Department, and the desire to stave off litigation it claimed would have been filed by a minority-officers’ association or the officers themselves. 193 F. sUPP. 2D AT 338. In analyzing the City’s claimed desire to avoid litigation, the District Court looked to Shaw II for guidence. 193 F. sUPP. 2D 351, citing Shaw II, 517 U.s. AT 908 N.4. 4

Arturo: And back to the lawsuits it goes. I mean, really, why would you make that public? What message does that send to anyone who *does* get promoted? You’re basically encouraging resentment against POCs with those kinds of statements.

Latoya:

Note, however, that in Cotter the record presented two significant factors in support of the City’s determination that this record lacks: 1) a documented history of past discrimination within the department and 2) expert reports showing that, under two different measures of statistical significance, the exam had a disparate impact on African-American candidates. 193 F. sUPP. 2D AT 346- 351. The record here contains no such evidence on New Haven’s behalf; indeed the City specifically declined petitioners’ request to have the test results validated. [...] New Haven thus far has not been put to its proofs as to whether it has a compelling interest in scrapping the test results – that is, whether, under the facts of this case, there was a “strong basis in evidence” that it would have been subject to Title VII liability. The record as it now exists leaves unresolved questions that require resolution by the District Court.

Thea: Is it like everyone is passing this around? Is that an accurate surmise?

Latoya: No, that’s how these cases work. They normally spend years going back and forth.

Thea: Yah, i was just going to say that’s prolly not out of the ordinary.

AJPlaid: Yep. My question is why. Why was this kicked up so quickly?

Latoya: That’s a good question. According to the filing, the lower court judges who dissented urged the court to take a look and as the NYT article stated, it’s been ages since the court ruled on race in hiring.

AJPlaid: Right. See, my instinct keeps going off.

Latoya: What’s your instinct saying?

AJPlaid: Again, this is the move that folks have been waiting for: that we don’t have to adhere to racial “preferences” anymore. And, with Obama, it’s the legal equivalent of the “post-racial” narrative enacted.

Latoya: Very true – post racial legislation and precedents. Oh, here’s something interesting. The Latinos have spoken.

Arturo: Did we leave a message?

AJPlaid: LMAO!

Latoya: Here’s what the International Association of Hispanic Firefighters Association had to say:

This Court should affirm the Second Circuit’s judgment that a decision to avoid potential discrimination is not itself discrimination. To reverse will exacerbate racial tensions in public safety departments in Connecticut and in other workplaces throughout the country by giving credence to the notion that racial justice is a zero-sum game with every win for a person of color representing a loss for a white person, or vice versa.

AJPlaid: Bingo! I’m with the Hispanic Firefighters Association with this one.

Latoya:

The City of New Haven was faced with evidence that its promotional tests had a serious adverse impact on Latinos, as well as African Americans. For the lieutenant’s exam, the pass rate for Whites was 58.14%, but for African Americans, it was 31.58%, and for Latinos, it was a mere 20%. Pet. App. 426a, 429a- 432a, 437a. The pass rate for Latinos fails the Equal Employment Opportunity Commission’s four-fifths rule by a wide margin, supporting an inference that the test created a serious disparate impact on Latinos, in particular. The pass rates for the captains exam were similar. On the captain’s exam, Whites passed at a rate of 64%, while African Americans and Latinos each passed at a rate of 37.5%, again, failing the four-fifths rule by a wide margin. Id. at 427a, 433a-436a, 438a.

Latoya: The briefs are fascinating. I need to read some more in defense of the respondent. But everyone is interpreting the idea of the law differently.

AJPlaid: So no one wants to say – as Thea astutely pointed out – the system or test stinks. Instead they’re saying ” AA stinks.”

Arturo: Hm. any stats on Asian applicants?

Latoya: Nothing standing out. Some of the briefs are joint filed, but nothing Asian specific.

AJPlaid: So, yeah–it would behoove the city to create a fairer *test.* The BS in the article about New Haven folks not knowing “uptown” and “downtown” is exactly that.

Arturo: It might have been a poorly-phrased way of saying those terms aren’t commonly used for specific parts of town. San Diego, for example, has neighborhoods called Downtown and Old Town. In Wichita, the downtown area *is* called Old Town.

AJPlaid: True. But, having been to New Haven…they know.

Latoya: Most of the pro-briefs are arguing that the test is race neutral and valid.

Arturo: I’d like to know who, exactly, came up with the test.

AJPlaid: Good point.

Arturo: I mean, if it was just 3 or 5 white guys …

Latoya: True, but that gets back to the ADL brief. The defendants didn’t get the test analyzed – they just chose to disregard the results. The ADL seems to want the test checked and verified with the results presented to that circuit court. So, is the onus on [the City] for this?

AJPlaid: Hmmm…I don’t think so. But perhaps, they want to be impartial arbiters before deciding which side they’re on.

Arturo: As leery as everybody seems to be of further litigation, that makes sense.

Latoya: True. I think this is as good as it’s going to get [for this discussion]. Y’all seem kind of *blech* about talking law. Which means readers will probably be blech about reading it.

Arturo: To be fair, I haven’t gone into much detail on the briefs

AJPlaid: Right, Arturo. I keep going back to this statement from Judge Arterton:

But the city’s motives were lawful, Judge Arterton said. They included fear of public criticism, the possibility of “lawsuits from minority applicants that, for political reasons, the city did not want to defend” and a desire to promote “diversity in the Fire Department” and “managerial role models for aspiring firefighters.” (NYT)

Arturo: But the argument itself is intriguing, even if there’s still a bunch of open-ended questions surrounding it.

Latoya: Right – And that’s where the two types of briefs split.

AJPlaid: Not so much *blech* , Latoya, just not on surer footing about all the angles.

Latoya: I suppose. The problem is it won’t be argued until the 22nd and it will be a while on a decision.

Arturo: That bit of evidence you presented earlier re: Latino test scores would seem to tilt things in favor of the defendants a bit.

Latoya: Well, it would depend though.

AJPlaid: On what?

Latoya: On what the court feels like is the real thrust behind this case.

AJPlaid: True.

Latoya: The petitioner supporters are all arguing that these types of hiring practices are, in fact, race neutral. And if we are willing to disregard the more race neutral forms of judging merit, then how is that getting us anywhere?

AJPlaid: But nuts-and-bolts of how AA gets implemented doesn’t appear race-neutral at all.

Latoya: Right – they are arguing that we are trying to override merit with quotas.

AJPlaid: Especially to those white folks who been used to racial preferences as a matter of course.

Latoya: Which is why some of the pro-respondent briefs were anti-quota. They argued that in this case, there was no quota – no one was promoted, so no harm, no foul.

Arturo: The counter to that argument is, if this is so “race-neutral,” why are black and latino applicants passing rates so low?

Latoya: Arturo, you know what they are going to argue in relation to that. You’ve been on this planet as long as I have. We’re *always* unqualified, even if we are.

AJPlaid: That’s it.

Latoya: And/or too lazy to study. After all, the guy with dyslexia could do it, because he *tried*

Aturo: except he *didn’t* — he wouldn’t have passed under the system, anyway.

AJPlaid: But I’d argue that’s not how AA is supposed to work. But that’s how it’s been used.

Latoya: Implication being blacks and Latinos either aren’t trying and just don’t have the aptitude. Art – also correct. We really need to try to find someone else involved in this case to get some stories from.

Arturo: Hm. Do we know if New Haven has any ethnic media?

Latoya: Not sure. Does someone want to check while I am rolling through the briefs?

Arturo: Well, there’s an “alternative” paper, the New Haven Advocate. Let me keep checking …

AJPlaid: Connecticut’s Ethnic Newspapers are here.

Arturo: Black Coalition Weekly. Hm.

Latoya: There also seems to be the assumption [in the pro-petitioner briefs] that the act of throwing out the test amounts to a race based preference, which is prohibited under the law.

AJPlaid: Still looking…

Arturo: that’s one question I’d like someone to ask: wouldn’t throwing out this test call for a re-test? And thus, wouldn’t our Mr. Ricci get another shot at making the top 3?

AJPlaid: Here’s a regional Black newspaper, coming out weekly: http://www.inqnews.com/Frontpage.php. Cursory glance: nada.

Arturo: I didn’t see anything, either.

Latoya: Ugh. This is when racial bias in the media blows me. Did they bother to interview any of the black or Latino firefighters?

Arturo: Obviously, it’s the NHFD’s fault for not having more dyslexic personnel to cover.

AJPlaid: I also see West Indian American and Inner-City News. Again, either jainky website or no website.

Arturo: I can’t even find a website for Black Coalition Weekly.

Latoya: <----sighs deeply

AJPlaid: Feel you.

Latoya: This is strange

Arturo: ?

AJPlaid: Uh-oh

Latoya: It's like everyone who is not a plaintiff vanished from public record.

AJPlaid: You know my favorite word for such things....

Arturo: Whitewash?

AJPlaid: Conspiracy.

Arturo: The FD site says the department isn't recruiting at the moment.

Latoya: I feel a mild level obsession coming on

AJPlaid: Of course not. Isn't it policy to not comment on cases, or am I dreaming?

Latoya: There has to be one person who went on record that is not a plaintiff. It's policy not to comment - but this is an old case. It was around for a while. Someone *had* to have said something before it went to trial.

AJPlaid: True.

Arturo: Maybe the BCW had something -- but without a site, it's a bit more involved to figure that out.

AJPlaid: But if the case is getting heard on 4/22, then the gag rule may be informally put on. And to break the roundtable, we'd need that info stat.

Arturo: Point.

AJPlaid: "break"=to go live

Latoya: Can someone check the Hartford Courant for information? They seem to have broke the original story that was picked up.

AJPlaid: On it.

Arturo: This is so NCIS. (Gods, I hate afternoon cable TV.)

Latoya: NCIS?

Latoya: <----watches TV once a week, at most.

AJPlaid: http://www.courant.com/news/local/hc-firefighter-race-lawsuit.artapr06,0,5219178.story

Aturo: Hm. It’s a wire story. This story is definitely slanted more favorably toward Ricci.

Arturo: It’s like CSI, but covering the military.

Latoya: Wait, so is that like JAG?

Arturo: I would imagine so. JAG doesn’t have a gothy lab asst., so I don’t watch it.

Arturo: Nobody on record for the defendants

Latoya: Hmmm.

Arturo: No black firefighters interviewed

AJPlaid: Nope.

Latoya: [The LA Times reported that the plaintiffs] said Boise Kimber, an outspoken black minister, was a key political ally of Mayor John DeStefano Jr., and that he pressured the city civil service board into rejecting the test results.

Arturo: Although the mention of the Obama administration [siding with both the City and the ADL] is a new wrinkle.

Latoya: It is.

Arturo: Looks like the Times re-ran the Tribune piece

“Payton emphasized that New Haven had not rejected the white firefighters because of their race, but rather rejected the use of the written exam as the sole determinant of who would be promoted.”

Arturo: That’s a key distinction.

AJPlaid: Yep. But the Obama wrinkle: thoughts?

Arturo: I’d like to know *who* in the administration was quoted there.

Latoya: I’ll second that, though I doubt we’ll get an answer. Some of the cases in the briefs (specifically the Michigan decision) cite the Bush Administration, no further info.

Arturo: It’s not a bad addition to the piece, but to not have a firefighter of color mentioned in the piece is disappointing. I’m also not digging that in every draft, the story centers on Ricci. It’s coming dangerously close to exploitation.

Latoya: Word.

AJPlaid: yep.

Arturo: I feel for the guy, I really do, but Savage is making him into some sort of Tiny Tim. We also haven’t heard from any applicants of color who took the test. How do we know none of *them* didn’t work just as hard?

AJPlaid: We don’t–and won’t–know.

Latoya: Man, we need to take this to the streets.

AJPlaid: Perhaps the reporter did talk to PoCs, and the editors took it out.

Latoya: Can we work our networks? Someone reading has got to be in New Haven

AJPlaid: I know Kai Chang lives in CT. Maybe he knows or kept up with the case.

Arturo: I’d have to check my Facebook, but I think I have a contact in CT.

Latoya: Alright, let’s do that then.

AJPlaid: Maybe hop on Twitter and ask, too. Anything else, Madame Editrix?

Latoya: No, you all have been awesome.

AJPlaid: Witticisms, criticisms, etc., etc.?

Arturo: It’s what we do.

Latoya: We can snark at the court after they release a statement. I wonder how often they get heckled.

Arturo: It’s a miracle it doesn’t happen more often.

AJPlaid: I heard Justice Thomas was booed at the Inauguration.

Arturo: Of course, if the SC was based in Philly, it’d be different

Latoya: lol

Arturo: “YOU SUCK, SCALIA! YOU SUCK!”

AJPlaid: LOL

Latoya: LOL, we should go old school. Bring tomatoes.

Arturo: And TP his car!

Latoya: Spray paint his garage

AJPlaid: Not that I’ve done anything like that….mind you.:D

Latoya: lol

Arturo: I’m too new-school. I just defriend evildoers on MySpace.

Latoya: We’ll send Scalia a tweet to get on MySpace. Then we de-friend him.