Chapter_5__Civil_rights - Affirmative Action: Don't Mend It...

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THURSDAY SEPTEMBER 11, 2008 WINTER 2002 — RELATED CONTENT RESEARCH AND COMMENTARY Black Americans Reduce the Racial IQ Gap: Evidence from Standardization Samples James R. Flynn, Psychological Science, October 2006 RESEARCH AND COMMENTARY Diversity Goals Help Kids in School -- and Later in Life Hugh B. Price, The Press-Enterprise (California), February 16, 2007 BOOK Urban Problems and Community Development Ronald F. Ferguson, March 02, 1999 More Related Content » Affirmative Action: Don't Mend It or End It - Bend It Education, Race, Affirmative Action, Ethnicity, Inequality Peter H. Schuck , Professor of Law, Yale University and New York University The Brookings Review Affirmative action policy—by which I mean ethno-racial preferences in the allocation of socially valuable resources—is even more divisive and unsettled today than at its inception more than 30 years ago. Affirmative action's policy context has changed dramatically since 1970. One change is legal. Since the Supreme Court's 1978 Bakke decision, when Justice Lewis Powell's pivotal fifth vote endorsed certain "diversity"-based preferences in higher education, the Court has made it increasingly difficult for affirmative action plans to pass constitutional muster unless they are carefully designed to remedy specific past acts of discrimination. Four other changes—the triumph of the nondiscrimination principle; blacks' large social gains; evidence on the size, beneficiaries, and consequences of preferences; and new demographic realities—persuade me that affirmative action as we know it should be abandoned even if it is held to be constitutional. s we know it" is the essential qualifier in that sentence. I propose neither a wholesale ban on affirmative action ("ending" it) nor tweaks in its administration ("mending" it). Rather, I would make two structural changes to curtail existing preferences while strengthening the remaining ones' claim to justice. First, affirmative action would be banned in the public sector but allowed in the private sector. Second, private-sector institutions that use preferences would be required to disclose how and why they do so. These reforms would allow the use of preferences by private institutions that believe in them enough to disclose and defend them, while doing away with the obfuscation, duplicity, and lack of accountability that too often accompany preferences. Affirmative action could thus be localized and customized to suit the varying requirements of particular contexts and sponsors. Triumph of the Nondiscrimination Principle Why is change necessary? To explain, one must at the outset distinguish affirmative action entailing preferences from nondiscrimination, a principle that simply requires one to refrain from treating people differently because of their race, ethnicity, or other protected characteristics. Although this distinction can blur at the edges, it is clear and vital both in politics and in principle. When affirmative action became federal policy in the late 1960s, the nondiscrimination principle, though fragile, was
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This note was uploaded on 02/09/2009 for the course PLS 100 taught by Professor Thornton during the Spring '07 term at Michigan State University.

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Chapter_5__Civil_rights - Affirmative Action: Don't Mend It...

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