Action

Lily recaps Affirmative Action Debate

I attended an interesting affirmative action debate in the North Carolina state Capitol a few weeks ago. The debate was between two law professors: Professor Baker from Campbell and Professor Boger from UNC. The following is my attempt to summarize some of their arguments - the result does not approach the original eloquence of either professor, but for what it's worth, here goes. I hope I do no injustice to either professor's viewpoint.

Professor Baker of Campbell Law School presented the anti-affirmative action position. Rather than putting on the traditional arguments that you hear against it, i.e. unfairness, the distortion of an otherwise rational meritocracy, etc., he spoke eloquently about his own experiences as an African-American undergraduate at an elite Southern private university, a willing participant in affirmative action. He described how he felt out of place during his years at college; he spent too much of his time and energy trying to fit into the social scene and trying to make sense of his own identity. He even described his habit of going to the local bus stop and people-watching, just to spend some time with folks who felt normal to him. The ongoing struggle to adapt to the white majority culture in which he was immersed took its toll on his confidence level and sense of self, the one commodity a person most needs in the professional world.

He then argued against the diversity justification that the US Supreme Court relied upon so heavily in its opinion in Gruder (the University of Michigan law school case finding affirmative action constitutional in certain limited situations). Physical diversity, he said, is not the same as the deep diversity that is truly the laudable educational goal. The kind of diversity that affirmative action puts in place is, he said, a transparent attempt to color the classroom with handpicked minority faces, for the purpose of helping the majority learn. There is only a mere trickle down benefit to the minorities themselves. As a historical example he pointed to Jackie Robinson – when he joined previously all-white major league baseball, the phenomenon of integration resulted, ultimately, in the death of the all-black baseball leagues, institutions that were extremely valuable and meaningful to a large amount of people. Today's modern parallel is the HBCUs, who are losing many of their best candidates to elite universities through affirmative action programs.

Professor Boger then presented a pro-affirmative action position. He first worked to refute the most prevalent argument against affirmative action: that our society would be more effectively advanced if we operated on the principles of strict meritocracy, only admitting to our elite schools those students with the best grades and test scores. He pointed out that nearly every elite university in the country, private or public, uses any number of acceptance criteria that are totally irrelevant to academic merit: athletic prowess, geographic preferences, legacy students, employee preferences, and, in many schools, so-called "development admissions," i.e. admitting those students whose parents donate large amounts of money.

He then argued that academic diversity is not, in the end, the critical matter. Rather, as a matter of pure practicality, we are a multi-racial society and we must learn to work and live together or risk social disintegration. Bringing young people together at a crucial formative time in their lives might serve the kids’ goals, but even more importantly, it serves societal goals. These selective schools, like it or not, are pipelines to power and authority in society, and they get their alumni into the elite power structures of this country. Also, on an even more fundamental level, it is simply more fair to have affirmative action than to go without it. Our society is made up of many different ethnic, racial groups, and genius is not discriminatory in its distribution. Ensuring that these groups equally represented in our country’s elite schools, and, in time, in its power structures, is simply the most - the only - equitable path.



(while, below, it looks like I (andrew) posted this...it is Lil's work. Many thanks to our dutiful fellow blogger)

High stakes testing

In Monday's Times, Brent Staples argues that civil rights groups should support...nay, he seems utterly unable to understand why civil rights groups don't whole-heartedly support No Child Left Behind (NCLB). His argument could be a nice something to think about. Instead, though, I come away remembering only one paragraph. In it, I saw what might be the worst argument logic I have read or heard since 'well he hit me first.'

Staples concludes that NCLB "could potentially surpass Brown v. Board of Education in terms of widening access to high-quality public education." This, because the law requires schools to separate students into identifiable groups--and if any one group fails in the testing, the whole school fails. This is indeed a way to prevent underprivileged groups from constantly performing at the bottom of the class. But, surpass Brown it does not.

The whole point is to provide each child a high quality education. And Staples absolutely skips over the important criticisms facing NCLB; incidentally, the biggest educational national experiment's in our Country.

Apart from funding, which is not an argument about the program but about the implimentation, the most important question regarding NCLB is whether high-stakes testing works. Reasonable people can differ, and various studies from states (such as NC and Texas) are providing various results. Staples, though, ignores the issue altogether. He simply picks up that favorite tactic of stating something as if it is unquestionably true: "The simple achievement tests required under the law are essential to the objective of closing the education gap." Oh yeah?

My concern with high-stakes testing regards the affect on Education in concept. We are, quite sadly, becoming a school-nation willing to teach to tests only. What is important, in that scheme, is getting the answers needed to pass a "simple achievement test." And because everyone needs to pass lest the school fail, we make darn sure to focus our energy on survey classes that drill in these answers. We focus, inclreasingly, on the what instead of the why. Such an approach might get us past simple acheivement tests. It will not create generations of innovators, thinkers, nor citizens capable of deliberative democracy.

And look at what we don't do. No longer is intellectual curiosity important. It is no longer our educative purpose to instill the ability to find answers for ourselves...Much less think for ourselves...Much less think vulnerably. Searching for truth, the great philosophical journey, and finding our passion takes a bumper tire seat to herding kids through tests via an unknowing answer society.

Of course, there are less societal-concern worries about high stakes testing. But instead of responding to those difficult questions, Staples picks up the lesser criticism that high stakes tests are culturally biased. I probably agree with his position against that argument. However, his response to it made me, for I think the first time ever, laugh out loud at a Times op-ed.

Next up is the antitesting argument. Civil rights activists commonly embrace the popular but erroneous view that the reading and math tests associated with No Child Left Behind are culturally biased or unfair to minority children. Paradoxically, those who hold this view are often middle- and upper-class African-Americans who have law degrees and Ph.D.'s, which require rigorous tests and high achievement.

OK, get that? Because people that have passed tests criticize high-stakes testing, they must be wrong. Staples relies on an even more bizarre version of the hypocrite argument (which is never a good one...calling someone out on their hypocritical position in a debate doesn't bolster your side at all). In any event, it was difficult to take Staples very seriously after this statement, and I will leave it with that.

High stakes testing might or might not be a good idea. I tend to think not. And so much annecdotal evidence suggests smaller classes, amongst other major changes, would do a great deal toward getting children's minds at work (Mike, step up to the plate anytime here). But let's debate the ideals, goals and methods of education rather than politicize the issue. Calling all civil rights groups to wake up and support NCLB simply because they are civil rights groups adds absolutely nothing to the efforts we all appreciate in bettering education.

judges

Irresponsible rhetoric, if you want to find examples, abounds in current debates over "activist" judges...and it comes from the left and right.

Everytime a person uses "activist" while speaking of judges and Justices, they engage in irresponsible, and more importantly, damaging, rhetoric. A Times op-ed, today, makes this point (and I point it out because my next post will point out the worst attempt at argument I've seen for months, and it appears in a Times op-ed.) The fact of the matter is this: there is absolutely no way to apply, nor even to speak of, the Constitution (or any text for that matter) without assuming some interpretive lense. The Constitution is not a computer program matrix into which we can simply insert facts and produce answers. As my legal theorist friend mentioned recently, even the strict constructionalist makes a choice. And a choice is action.

As Adam Cohen points out, today:

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Justice Scalia's views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms."

Wow. Sounds an aweful lot like the "penumbra" from Griswold so infamous amongst the right.

And:

The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court's conservative bloc trample on the Florida state courts and stop the vote counting - it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn't a constitutional argument - it is an unapologetic defense of judicial activism.

The op-ed is actually wrong in calling Scalia a strict contructionalist. He maintains that he is an "Originalist," in that, he finds what the founders, two centuries ago, meant by their words. Anyone that has considered historiography, of course, knows the level of interpretive license this requires. The point, though, remains. You make a choice.

The Constitution fits in any vest pocket. It is scarse and (quite importantly) begs for interpretation. We could have gone about this with a thousand amendments. I think Mike, our fellow blogger, would call for this option. I think the wiser course has been taken, resembling much more the common law of Britain.

And liberals, too, should be wary of their rhetoric when addressing Constitutional law and the domain of Federal judges. I heard my favorite professor, Erwin Chemerinsky, give this warning, and it was offered again in a recent commentary by Professor Lazarus (a critic, by the way, of Roe v. Wade). Progressives ought not over-praise nor under-praise a judiciary that reaps results we appreciate ("we," as I count myself amongst those being addressed). Lazarus makes the good point that the judiciary is not the sole interpreter of the Constitution. Progressives have praised the interpretive qualities of the Supreme Court in Brown and Lawrence, while frowning on no greater leaps of interpretaion in Bush v. Gore and almost any takings clause case.

(Lazarus makes a strinking point with which I disagree: he calls Dred Scott activist. If anything, this seems the most frustratingly strict contructionalist case I've ever read.)

In closing, liberals should carefully consider motives versus reason when defending a court decision. Everyone else needs to drop this myth of activist judges. The Constitution can be nothing but interpreted, and there is no inherently purer way to do this than the next.

good, thank you

there is quite often a self-congratulatory, a sort-of "i'm in the club" announcement, tone deep within the response of "well" to the question of "how are you."

good is the vernacularly accepted common answer. that, or, an actual description of the respondents feelings. but well, we are taught, is the answer preferred on grammar quizzes. indeed, should the question have ended with "doing," such advice would be saved from the default status of grammer advice (malapert) and serve some use...maybe a conversation starter. indeed, well, and not good describes a verb.

but 'how are you' requires, if we wonder what this phrase means, an interpretive leap to assume that 'doing' should become the object of the question. should we strip down from contextual assumptions, and view the bare phrase, it asks a rather simple, if metaphysical, question. italics will do the trick: how are you.

to such a question, 'good' is not only a fortunate response, but the correct response grammatically. i am good. eat it, ms phillips.

if only we could think of the smartass responses to our instructors while sitting in that little 3rd grade desk. sorry, little andrew, i wasn't there for you then.

bellah

[In addition to Mike's response (below) on Civil Religion, I am also reading this essay, by Robert N. Bellah on Civil Religion. I'll have several questions.]

abloom

a day late and a dollar short (lose a bet?)
It appears that, rather than a new weekend human interest post tradition, I have begun a regular post called the Andrew apologizes for posting the weekend human interest post on Monday. Really, though. Don't we all want to extend our weekends into one more day? Thus.

On Sunday, I joined a friend for a walk down to the tidal basin, lined, as it was, with thousands of cherry blossomed trees. And thousands of people shuffled down a trail along the water, visiting this pink and white brooch by mother nature's collar. At some point, we all, I should hope, reckoned that the place and the time felt right. Beer after mowing the lawn right. This is spring, and I'm going to brush my newly sunburned face on some low hanging cherry blossoms.

The blossoms are short lived. In just a little while, the spring breeze will wear those petals like a flimsy skirt. It's stange to think of their fruit-fly existence while walking under the branches. That, in days, these petals will be the closest thing we see to snow until winter. Here and gone.

But, here again come next spring.

That's why we walk down there, by the tidal basin. On a stark clear day with perfect spring air, we were given a moment. Fading as it may be, you can't watch those trees without connecting to every memory of spring's first days. I was with my family in Umstead Park, on my school's quad, not studying for finals, my first day back in flip flops. And, hopefully, I was looking at these trees again sometime.

And all that springtime was there inside me while we were sitting at the tidal basin. But I wasn't thinking about any of those memories. I didn't have to close my eyes or tell a story to evoke my idealized recollection of April. The cherry blossoms are here. And their quick presence is rather like a flashing smile from early spring. With my legs dangling down toward the water, I could let, finally, the memory of early spring be something other than a memory.

Lily on Civic Religion

Lily on Civic Religion

In response to Andrew's latest post, I just wanted to make the quick observation that whether God exists is a question that most religious creeds answer in the affirmative. This tends to suggest to me that the concept of God carries meaning that transcends any specific religious creed. What that meaning is, exactly, is of course a little fuzzy, and perhaps for these purposes ought to remain so, since almost any words one uses to articulate it could serve to exclude someone from the discussion. Just as we can all understand the concept of Truth, even if we don't know how we'd articulate it, or even, sometimes, how to find it. We are comfortable with doing this in other aspects of our culture; for example, in jury trials. Juries in the Western legal system have the job of figuring out the Truth from a presentation of evidence. We don't worry about having to explain to a jury that the truth exists somewhere out there; we assume they already know that, and just present them with what we know so far, and let them go from there. A person who doesn't believe in the metaphysical existence of objective truth can still serve competently as a juror. Similarly, even if a person doesn't believe that God exists, it doesn't mean that they can't conceive that the concept of God has any meaning to anybody. Does it mean that that person is entitled to keep the government from putting "In God We Trust" on the nation's money?

What I find more troubling is what the concept of a civic religion would mean to someone who had no religious creed at all, i.e. an atheist. This is the kind of person who would most obviously feel uncomfortable with "under God" in the Pledge of Allegiance, "In God We Trust" on our money, etc. Atheism, by definition, is a rejection of all religion, and, as a society that wishes to accommodate as many views on religion as possible, a rejection of all religion would naturally seem like something we need to accommodate, too. Can a civic religion do this? Should it do this?

civil religion

Quick post (lunchtime)...
Thanks to Mike and Lily for indulging in this continued topic. I look forward to gaining some helpful insights on our assumptions and aspirations in church/state legal issues.

Mike defined civil religion in his last post ("Civil Religion is only as I have stated it, a context connecting the nations conscience and laws with the sacred and divine"). This should prove a helpful starting point, but I (and I can't speak for Lily) need some more help understanding the concept. Mike makes clear that the "sacred and divine," in the civil religion context, is not a particular religious creed. What, then, is it? If the Pledge of Allegience recognizes the soveriegnty of God, what meaning does carry if it does not refer to God as understood through a particular religious creed. What is the nature, in other words, of the civil religion "God"?

I have more, but I'll wait for the response to this before adding more questions/confusion to the issue.

That said, I hope all readers that have weather nearly so nice as it is here in DC find some excuse to stop reading blogs and get outside. Interiors are a cruel punishment today.

Cheers.

berry

I keep meaning, each weekend, to toss up a few posts from the arts section, or travel, or style. I forget, though, that weekends find me much rarer behind the computer. But, before heading to bed tonight, I will achieve this new tradition of weekend human interest posting.

Over the week, I had a good conversation about the writer and farmer, Wendell Berry. Berry lives in Kentucky on his farm. I've read more of his essays than fiction, and even less of his poetry. Here, then, is a piece of the latter. For April.


Kentucky River Junction

to Ken Kesey & Ken Babbs

Clumsy at first, fitting together
the years we have been apart,
and the ways.

But as the night
passed and the day came, the first
fine morning of April,

it came clear:
the world that has tried us
and showed us its joy

was our bond
when we said nothing.
And we allowed it to be

with us, the new green
shining.

*

Our lives, half gone,
stay full of laughter.

Free-hearted men
have the world for words.

Though we have been
apart, we have been together.

*

Trying to sleep, I cannot
take my mind away.
The bright day

shines in my head
like a coin
on the bed of a stream.

*

You left
your welcome.





The poem's from Collected Poems: 1957-1982, and can be found here.

Pope

The Pope heads home. It is certainly a powerful day for many around the world- and for a variety of reasons. Our grief at death, I think, is for our loss...the end of our chance to see a person in this world.

For thoughts on John Paul II, let me refer you to this post, from Josh Marshall, that I found interesting.

4/1/05

Happy April Fools Day...