Policy Issue 1: Redressing Past Wrongs

1. Policy Issue 1:Redressing Past Wrongs Political Science 61 / Chicano/Latino Studies 64 November 20, 2007

2. Essay 2 – Due November 29 As the candidates and parties gear up for the 2008 presidential election, there is much talk in the media about a new importance of minority voters, particularly in the Democratic Party primaries and in the general election. These expectations would seem to be making two assumptions: a) that there is a minority vote as opposed to varied voting patterns for different racial and ethnic populations and b) that minorities can be mobilized at high levels in presidential politics. In an essay, assess the degree to which each of these assumptions is accurate based on recent minority political behavior. Tapping evidence from class readings and lectures, please assess the circumstances under which minority voters can be important to electoral outcomes and the degree to which minority political behavior might shape non-Hispanic white political behavior.

3. Final Section of the Class Policy Issues • The outcome of empowerment • Can minority communities influence/shape policy debates on issues of importance to them? • Pluralism rewards cross-group cooperation • Larger organized groups and • More cohesive groups

4. We Begin • With perhaps the most controversial policy issue … and one that tests the boundaries of pluralism • Group-specific demands that take resources from political majorities • Remedial policies • To compensate for past exclusion • Even the playing field for those who were excluded or their decedents

5. Examples of Remedial Policies • U.S. • Compensation for Japanese internees (Civil Liberties Act of 1988) • $20,000 for each living detainee • Proposed remedial claims (in Congress and the Courts) • Reparations for descendants of slaves • Payments for lands taken in violation of the Treaty of Guadalupe Hidalgo (1848) • Restoration of Vieques Puerto Rico • Not just a domestic phenomenon • Swiss banks compensation for Holocaust victims

6. Why Compensate for What Happened in Distant Past? • Arguments made in favor • Compensation for past wrongs • Legacies of those “wrongs” shape people’s lives and opportunities today (so not the distant past) • Wealth differences in African Americans a legacy of slavery and pre-1965 apartheid • Dual education systems reduced human capital in African American, Latino, and Asian American communities • Arguments against • People who would pay the price today did not commit the “wrong” • Individuals can overcome the costs of the “wrong”

7. Potentially Divisive Within Minority Communities • Post-1965 immigrants and their children benefit from programs designed to remedy discrimination against descendants of earlier residents • May be a better position to seize educational opportunities because of higher levels of human capital in immigrant communities (Afro-Caribbean immigrants or Latino migrants from countries other than Mexico and Puerto Rico) • That immigrants and their descendants receive “benefits” undermines popular support for Affirmative Action

8. Dominant Remedial Policy Since 1960s – Affirmative Action • Affirmative action policy not richly thought out at the beginning • But has become the focus of the debate • New Supreme Court will undoubtedly have to again decide national policy • State ballot initiatives will put some decision making in voters’ hands • Diverted the debate from more radical solutions … that would arguably eliminate the need for continued remedial policies

9. Affirmative Action– Definition Policy or program to redress past injustice against a specified group by providing group members with unique access to state resources Primary state resources • Education • Employment • Government contracts

10. Other Forms of State Non-Meritocratic Rewards • Veteran’s preferences in employment and education • Sometimes extended to spouses or children of members of the military killed in national service • Hiring and contracting programs for the disabled • Under constitutional challenge • State university admission policies that focus on factors other the scholarly excellence • Athletes • “Legacies” • Cultural skills

11. Origins as Public Policy • Executive Order 10,925 (1961) • Civil Rights Act of 1964 • Johnson speech at Howard University (1965) • Executive Order 11,246 (1965) • Reflected the civil rights ethos of the age • Remove barriers • Opportunities assumed to follow

12. Quickly Understood Differently • “Second generation” civil rights policies • Try to shape result, not access • Used instrumentally by Republicans • President Nixon and the “Philadelphia Plan” • Only federal “quota” plan • Claims of “reverse discrimination” enter the popular debate • People who didn’t commit the wrong pay the price

13. Affirmative Action and the Courts 1 • U.C. Regents v. Bakke (1978) • Prohibited use of racial quotas • Prohibited separate procedures (here admissions) • Must show public purpose in affirmative action • United Steelworkers of America v. Weber (1979) • Race-conscious remedies can be constitutional • Civil Rights legislation identifies a constitutional state interest—remedy legacies of discrimination

14. Affirmative Action and the Courts 2 • Richmond v. J.A. Croson Co. (1989) • Past discrimination alone is insufficient to justify affirmative action in contracting • Remedy must be related to the facts • Courts must use “strict scrutiny” = high standard • Adarand Constructors v. Peña (1995) • Race-based remedies must be narrowly tailored to the facts in the case

15. 1990s Challenges • Hopwood v. Texas (1996) • Circuit court – race can never be used in univ. admissions • Applied in Texas, Louisiana, and Mississippi • Supreme Court refused to hear appeal • Proposition 209 (1996)—Prohibited California state government from using affirmative action • 54 percent of Californians supported, • 27 percent of blacks, 30 percent of Latinos, and 45 percent of Asian Americans • “Mend it don’t end it” (Clinton Administration) • Oppose it, but not actively (Bush Administration)

16. Pro-Affirmative Action Arguments in Education • Institutional inequalities still exist • Minority students have less access to high quality high school education • Standardized tests not written with minority students in mind • Minorities more likely to be economically disadvantaged

17. Anti-Affirmative Action Positions in Education • Race based preference is discrimination • Laws no longer exist that exclude minorities (de jure discrimination) • Minorities can gain admittance on their own • Affirmative Action is a crutch to minority students

18. The Michigan Cases and Constitutional Law Today • Gratz v. Bollinger – Undergraduate • Grutter v. Bollinger – Law school • Federal district courts reach opposite conclusions • Supreme Court • Amicus curiae (briefs before the Supreme Court) • President Bush • Eclectic coalition in support of affirmative action • Ruling – Universities can take account of race (the law school case), but not give a specific reward for race (the undergraduate case)

19. Public Opinion • Mass opinion divided • Depends on how the question is asked • Majority consistently opposes “affirmative action” • Support grows when question states that affirmative action does not mean “rigid quotas” • Affirmative action receives greater elite support • Private sector applies voluntarily • Private sector and other elites supported the University of Michigan

20. Position on Affirmative Action Program Giving “Preferences”

21. Do Current Affirmative Action Programs …?

22. Note the Elite and Mass Solutions Converge … • As long as it’s not defined as affirmative action • Preferences ok as long as preferences don’t absolutely exclude an equally deserving person who did not experience discrimination • A very pluralistic approach to a contentious debate • Elites – It is good for all to have multiple voices heard (the core notion of pluralism) • Mass – No harm in a leg up

23. However, • Solutions that take from one group to give to another (whether money or a position in a graduate class) do not receive much popular support) • Reparations to victims of Japanese internment the exception – why? • An area where there will be little potential for cross-group alliance • Latino and Asian American immigrants and their children will likely ally with majority populations (against reparations)

24. For Next Time Based on your reading of Zolberg, what are the real – as opposed to politically charged – issues that the nation needs to address as it reforms immigration in the early 21 Century?