Contributor Post Created with Sketch. How Affirmative Action Falls Short

 

It has been fifty-six years since the passage of the Civil Rights Act of 1964, legislation that took aim at the systematic forms of legal segregation that had long dominated large segments of American life. It did not take an expert in implicit biases to see the corrupting influence that officially sanctioned racial segregation had on public life, nor did it take a subtle analysis to understand the importance of the Voting Rights Act of 1965 in undoing the exclusion of African-American citizens from their lawful place in society. The effects of these statutory reforms were lasting and profound.

The passage of these landmark statutes did not put an end to racial conflict simply because they ended explicit forms of discrimination. Indeed, one of the toughest issues to resolve was the proper regime for dealing with labor markets. The great mistake of the 1964 Civil Rights Act was to adopt an explicit colorblind standard for employment under Title VII, which had the effect of slowing down the introduction of affirmative action programs that might have led to more African-American employees in the workplace, especially in unionized firms.

Those affirmative action programs received belated judicial approval in United Steelworkers v. Weber (1979), in which Justice William Brennan held that Title VII “does not prohibit such race-conscious affirmative action plans.” In Weber, Justice Brennan upheld a program that set aside 50 percent of the in-plant craft-training places for black workers until they achieved parity to the percentage of black workers in the overall labor force within that community. That decision was the second major piece of Title VII’s employment law regime, following the 1971 decision in Griggs v. Duke Power, which had previously adopted a strict “business necessity” test to justify a disparate impact that any facially neutral test or business practice had on racial minorities. Weber enabled affirmative action programs, while Griggs blocked discrimination against protected minority groups.

The effects of these decisions were not small. Weber inaugurated what would become a massive movement towards affirmative action programs in the United States, a phenomenon that is radically inconsistent with the claim that structural racism exists. The anti-racist movements that have gained strength in the past several years insist that “structural racism . . . typically instigated or sanctioned by government . . . creates inequality in every aspect of life and puts black people on the lowest rung of the racial hierarchy ladder.”

Notwithstanding Weber and Griggs, such charges might be sustained if there were any public statements or official policies that defended racially discriminatory practices. Fortunately, there are no such declarations to be found today. Faced with that reality, those who claim structural racism is a problem necessarily point to implicit social practices and norms that are said to be racist.

At this point, the basic claim is that any form of disparity in outcomes by race—such as by wages or professional representation—is conclusive evidence of some form of systematic racism. That expansive claim eliminates one of the key elements of a disparate impact claim under Griggs. The baseline for the determination of unequal access under Griggs is not the entire population of the nation, or even that of any state or local area. It is, or at least was, the class of potential workers or students who were in the relevant occupational or educational niche.

The readiness of individuals for advanced schooling or certain classes of jobs sets the denominator for the overall inquiry. In addition, it is critical to note that the federal courts have been very tough in their examination of general ability or aptitude for entry-level positions, as in Ricci v. DeStefano (2009), where by a five-to-four vote the Supreme Court upheld the use of a carefully prepared and vetted entry-level test for police officers, notwithstanding its disparate impact on outcomes. But even if Ricci had come out the other way on entry-level positions, it would have had little or no impact on the distribution of jobs in advanced positions, where the common form of job interview asks applicants to analyze an assignment drawn from the company files. In these cases, business necessity is a given, so that any disparate impact in outcomes is beyond the ordinary field of view. But even while these firms are protected against disparate impact suits, they still engage in extensive outreach programs to include more minority members in their ranks, further undermining claims of structural racism.

Yet there are limits to the extent that these outreach programs are able to reverse the evident level of disparate impact in operation. As economists Edward Lazear and the late Sherwin Rosen have suggested, one way to think of how promotions work in firms is to treat the process as though it were a tournament, in which the first bracket includes all entry-level candidates. Under this framework, an explicit affirmative action program at level one guarantees that at level two, which lacks the same affirmative action requirements, not all groups will gain promotions in the same proportion that brought them to the second round.

There are of course many different ways to promote and many different measures of performance that can be used at various stages of the process. But for the general point, the basic tendency remains the same if one assumes that all workers have a constant ability that does not alter over time, without trying to plot variations in individual performance levels—a task better left to the employer.

Under this assumption, if that second round is selected wholly without regard to race (or any other single characteristic), the disparities in representation between the two groups will necessarily increase. Suppose that after an initial round of promotions there are two groups, A and B, each comprising fifty employees, with group A candidates being rated from 21 to 45 and group B candidates being rated from 16 to 40, the ratings being evenly distributed over the respective ranges for both groups. Next, suppose there are only fifty higher-level positions available to this combined pool, with promotions being made strictly on the basis of formal qualifications. Recall “business necessity.” All of the group-A candidates with performance scores over 40 will make it through, which yields ten candidates. The next forty candidates selected will comprise twenty employees from group A and twenty from group B, all with scores ranging from 31 to 40, resulting in a final pool of thirty group-A employees compared to only twenty group-B employees.

Repetitive application of these same rules only increases the disparity, eventually converging to a pure ability-based hiring distribution.

The question then arises of what countermeasures can be used to deal with this reality. Still using the above numbers, one possibility that is constantly entertained is to lower the formal cutoff below the 31-point measure, and then base selection on a “holistic” evaluation of the candidates in order to increase the number of group-B employees in the higher tiers. But there are powerful limitations to this strategy, especially in technical and scientific areas, as this approach creates a situation where individuals with supervisory rules have weaker credentials than the next cohort that they supervise. The further along one moves in a hierarchy, the more costly the continuation of the holistic model of selection.

At this point, the only remaining strategy is to get stronger candidates from group B into the initial pool, often achieved by engaging in costly searches and creating better benefit packages to locate and secure the additional talent. But if the identical strategy is adopted by multiple firms, the wage and benefit packages that are offered to group B employees will disproportionally increase relative to group A, which could easily create an uneasy firm dynamic where weaker employees receive greater total compensation than stronger ones.

Systemwide, the problem becomes a social one, centered on increasing the input of talent from disparately impacted groups to avoid the problems of initial hiring and promotion. Thus, the foundational issue focuses on educational policy. The Nobel laureate economist James Heckman has repeatedly stressed the importance for disadvantaged children of developing the skills for success later in life. Unfortunately, state monopolies on public education hamper student performance, as in Detroit. This points to a critical role for charter schools to play in overcoming the many shortcomings of public education. Sadly, working along these lines requires a focus on the long game and a willingness to limit political influences on educational practices.

The shortsighted impulses of the day may produce short-term political gains, but only a committed effort to supply all children with the educational opportunities they deserve will ultimately correct the disparate outcomes seen today.

© 2020 by the Board of Trustees of Leland Stanford Junior University.

Published in Law
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  1. Stina Member

    If companies are truly concerned about this, they can play the long game and invest in sound educational policy. The average parent has very little control over education as money is the driving force and money is not controlled by the parents or the community, but by politicians bought by the outsized influence of teacher union dues.

    It would be nice to see people with more financial clout get behind the parents on education reform and bolster our voices with what really gets heard in politics.

    • #1
    • October 7, 2020, at 1:21 PM PDT
    • 1 like
  2. Aaron Miller Member
    Aaron MillerJoined in the first year of Ricochet Ricochet Charter Member

    Affirmative Action programs replaced one form of systemic racism with another. It was bad policy from the beginning. If the Irish could overcome prejudice without forced inclusion and favoritism, so could black Americans. 

    I grew up in the heyday of Affirmative Action (1980s and 1990s). The effect was to discourage integration by incentives for non-whites to identify and organize by race. 

    • #2
    • October 7, 2020, at 1:32 PM PDT
    • 4 likes
  3. A-Squared Inactive

    This is an odd column from Epstein, who has consistently defended racial preferences in academia in his LawTalk podcast.

     

    • #3
    • October 7, 2020, at 1:57 PM PDT
    • Like
  4. Jerry Giordano (Arizona Patrio… Member

    Stina (View Comment):

    If companies are truly concerned about this, they can play the long game and invest in sound educational policy. The average parent has very little control over education as money is the driving force and money is not controlled by the parents or the community, but by politicians bought by the outsized influence of teacher union dues.

    It would be nice to see people with more financial clout get behind the parents on education reform and bolster our voices with what really gets heard in politics.

    I don’t think that this suggestion will work, if I’m understanding your suggestion properly. It’s a free-rider problem. A company that “invests” in long-term education will only receive a benefit if it can be assured that the educated individuals will work for that company. But the educated individuals will be able to seek employment with any company.

    If you are using “invest” to actually mean “politically support,” then this might be a feasible idea.

    • #4
    • October 7, 2020, at 1:59 PM PDT
    • 2 likes
  5. MISTER BITCOIN Member

    Aaron Miller (View Comment):

    Affirmative Action programs replaced one form of systemic racism with another. It was bad policy from the beginning. If the Irish could overcome prejudice without forced inclusion and favoritism, so could black Americans.

    I grew up in the heyday of Affirmative Action (1980s and 1990s). The effect was to discourage integration by incentives for non-whites to identify and organize by race.

    Japanese who were interned in WW2 lost everything and received no compensation (until 1988).

    By 1959 (I can’t remember the exact year, I will check and update), almost all had landed on their feet: job, home, business, investments, etc.

    Also why are we talking about affirmative action in the past tense? Affirmative action has gotten worse, where all that matters is race and ethnicity and merit is optional.

     

    • #5
    • October 7, 2020, at 2:08 PM PDT
    • 1 like
  6. MISTER BITCOIN Member

    A-Squared (View Comment):

    This is an odd column from Epstein, who has consistently defended racial preferences in academia in his LawTalk podcast.

    He has but the circumstances were different.

    And it was in 2012 or 2015.

    A lot has changed.

     

    • #6
    • October 7, 2020, at 2:09 PM PDT
    • Like
  7. MISTER BITCOIN Member

    School vouchers and charter schools help blacks more than affirmative action.

     

    • #7
    • October 7, 2020, at 2:14 PM PDT
    • 4 likes
  8. A-Squared Inactive

    MISTER BITCOIN (View Comment):

    A-Squared (View Comment):

    This is an odd column from Epstein, who has consistently defended racial preferences in academia in his LawTalk podcast.

    He has but the circumstances were different.

    And it was in 2012 or 2015.

    A lot has changed.

     

    I’ve definitely heard him defend racial preferences in the last two years, probably within the last 12 months.

    Even if we go back to 2015, what has changed?

    • #8
    • October 7, 2020, at 2:15 PM PDT
    • 1 like
  9. A-Squared Inactive

    MISTER BITCOIN (View Comment):

    School vouchers and charter schools help blacks more than affirmative action.

     

    Why do you think Democrats are so consistently opposed to them?

    • #9
    • October 7, 2020, at 2:16 PM PDT
    • 1 like
  10. MISTER BITCOIN Member

    A-Squared (View Comment):

    MISTER BITCOIN (View Comment):

    A-Squared (View Comment):

    This is an odd column from Epstein, who has consistently defended racial preferences in academia in his LawTalk podcast.

    He has but the circumstances were different.

    And it was in 2012 or 2015.

    A lot has changed.

     

    I’ve definitely heard him defend racial preferences in the last two years, probably within the last 12 months.

    Even if we go back to 2015, what has changed?

    Epstein admitted some affirmative action is unavoidable for administrative and political reasons.

    The change is that the emphasis on race and under emphasis on merit are more pronounced and invidious than in 2015 or 2012.

     

    • #10
    • October 7, 2020, at 2:46 PM PDT
    • Like
  11. MISTER BITCOIN Member

    A-Squared (View Comment):

    MISTER BITCOIN (View Comment):

    School vouchers and charter schools help blacks more than affirmative action.

     

    Why do you think Democrats are so consistently opposed to them?

    Their largest donor is the public school teachers unions

     

    • #11
    • October 7, 2020, at 2:47 PM PDT
    • Like
  12. MISTER BITCOIN Member

    A-Squared (View Comment):

    MISTER BITCOIN (View Comment):

    A-Squared (View Comment):

    This is an odd column from Epstein, who has consistently defended racial preferences in academia in his LawTalk podcast.

    He has but the circumstances were different.

    And it was in 2012 or 2015.

    A lot has changed.

     

    I’ve definitely heard him defend racial preferences in the last two years, probably within the last 12 months.

    Even if we go back to 2015, what has changed?

    Epstein defended affirmative action as a practical matter not on first principles

     

    • #12
    • October 7, 2020, at 2:47 PM PDT
    • Like
  13. A-Squared Inactive

    MISTER BITCOIN (View Comment):
    The change is that the emphasis on race and under emphasis on merit are more pronounced and invidious than in 2015 or 2012.

    I’m not seeing that.

    I had to go through racial sensitivity training in 1994 during graduate school orientation. I haven’t seen much change since then other than mountains of evidence that affirmative action in academia is counterproductive, but all of that was available in 2015. Jason Riley’s book was published in 2014. https://www.amazon.com/dp/B017GH546O/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1

     

    • #13
    • October 7, 2020, at 2:49 PM PDT
    • 2 likes
  14. A-Squared Inactive

    MISTER BITCOIN (View Comment):

    A-Squared (View Comment):

    MISTER BITCOIN (View Comment):

    School vouchers and charter schools help blacks more than affirmative action.

     

    Why do you think Democrats are so consistently opposed to them?

    Their largest donor is the public school teachers unions

     

    I way more cynical than that. I think it is patently obvious to the casual observer that Democrats affirmatively want African-Americans to continue to be disadvantaged so they remain reliable Democrat votes. I have seen a single shred of evidence to the contrary in the 30 years I’ve been politically aware. Obama’s entire administration was focused on keeping African-Americans disadvantaged.

    • #14
    • October 7, 2020, at 2:57 PM PDT
    • 5 likes
  15. RushBabe49 Thatcher

    You cannot use “proportion of x race individuals in the local population” as a measure of the proportion of x race individuals that should be in any job or position. Same with women. You must consider what those people of x race WANT. Say 12% of the local population is black. That should not translate to 12% of electricians and 12% of carpenters and 12% of proofreaders must be black. What if black people don’t want to be proofreaders or electricians? What if 52% of women do not want to be CEOs? The fact that only 5% of CEOs are women does not mean that women are discriminated against! Affirmative Action cannot work.

    • #15
    • October 7, 2020, at 10:00 PM PDT
    • 2 likes
  16. MISTER BITCOIN Member

    RushBabe49 (View Comment):

    You cannot use “proportion of x race individuals in the local population” as a measure of the proportion of x race individuals that should be in any job or position. Same with women. You must consider what those people of x race WANT. Say 12% of the local population is black. That should not translate to 12% of electricians and 12% of carpenters and 12% of proofreaders must be black. What if black people don’t want to be proofreaders or electricians? What if 52% of women do not want to be CEOs? The fact that only 5% of CEOs are women does not mean that women are discriminated against! Affirmative Action cannot work.

    Why are there no black kickers in the NFL?

     

    • #16
    • October 7, 2020, at 10:06 PM PDT
    • Like
  17. RushBabe49 Thatcher

    MISTER BITCOIN (View Comment):

    RushBabe49 (View Comment):

    You cannot use “proportion of x race individuals in the local population” as a measure of the proportion of x race individuals that should be in any job or position. Same with women. You must consider what those people of x race WANT. Say 12% of the local population is black. That should not translate to 12% of electricians and 12% of carpenters and 12% of proofreaders must be black. What if black people don’t want to be proofreaders or electricians? What if 52% of women do not want to be CEOs? The fact that only 5% of CEOs are women does not mean that women are discriminated against! Affirmative Action cannot work.

    Why are there no black kickers in the NFL?

     

    Because black players would rather be offensive linemen or tackles who work all the time, than kickers who don’t. (this is just a guess-I know very little about football)

    • #17
    • October 7, 2020, at 10:17 PM PDT
    • 1 like
  18. MISTER BITCOIN Member

    RushBabe49 (View Comment):

    MISTER BITCOIN (View Comment):

    RushBabe49 (View Comment):

    You cannot use “proportion of x race individuals in the local population” as a measure of the proportion of x race individuals that should be in any job or position. Same with women. You must consider what those people of x race WANT. Say 12% of the local population is black. That should not translate to 12% of electricians and 12% of carpenters and 12% of proofreaders must be black. What if black people don’t want to be proofreaders or electricians? What if 52% of women do not want to be CEOs? The fact that only 5% of CEOs are women does not mean that women are discriminated against! Affirmative Action cannot work.

    Why are there no black kickers in the NFL?

     

    Because black players would rather be offensive linemen or tackles who work all the time, than kickers who don’t. (this is just a guess-I know very little about football)

    or they play soccer?

     

    • #18
    • October 7, 2020, at 10:20 PM PDT
    • 1 like
  19. Pony Convertible Member

    Dr. Thomas Sowell made a great point about affirmative action. He pointed out that with most government programs you can at least see who benefits at a cost to others. For example, a sugar growers benefit from sugar tariffs at the cost of sugar consumers. With affirmative action you can’t find anyone who benefits. It doesn’t even help those it was intended to help.

    • #19
    • October 8, 2020, at 5:21 AM PDT
    • 2 likes
  20. Stina Member

    Jerry Giordano (Arizona Patrio… (View Comment):

    Stina (View Comment):

    If companies are truly concerned about this, they can play the long game and invest in sound educational policy. The average parent has very little control over education as money is the driving force and money is not controlled by the parents or the community, but by politicians bought by the outsized influence of teacher union dues.

    It would be nice to see people with more financial clout get behind the parents on education reform and bolster our voices with what really gets heard in politics.

    I don’t think that this suggestion will work, if I’m understanding your suggestion properly. It’s a free-rider problem. A company that “invests” in long-term education will only receive a benefit if it can be assured that the educated individuals will work for that company. But the educated individuals will be able to seek employment with any company.

    If you are using “invest” to actually mean “politically support,” then this might be a feasible idea.

    Lockheed Martin has invested heavily in UCF’s STEM program and other STEM magnet programs in Orange County Public Schools.

    In a college town, still most of those students will stay local for college.

    There is an active internship (well paid) program at Lockheed that trains up college juniors and offers about 80% of them a job upon graduation.

    I don’t think it fails as badly as you think it does.

    Certainly, the hands off approach is having deleterious effects on the domestic labor pool.

    • #20
    • October 8, 2020, at 5:49 AM PDT
    • Like
  21. A-Squared Inactive

    RushBabe49 (View Comment):

    You cannot use “proportion of x race individuals in the local population” as a measure of the proportion of x race individuals that should be in any job or position. Same with women. You must consider what those people of x race WANT. Say 12% of the local population is black. That should not translate to 12% of electricians and 12% of carpenters and 12% of proofreaders must be black. What if black people don’t want to be proofreaders or electricians? What if 52% of women do not want to be CEOs? The fact that only 5% of CEOs are women does not mean that women are discriminated against! Affirmative Action cannot work.

    Well, the elephant in the room is that the average IQ of African-Americans is a full standard deviation below whites, and whites are generally a half-standard deviation below Asians.

    https://www1.udel.edu/educ/gottfredson/30years/Rushton-Jensen30years.pdf

    If your job requires an average IQ of 100, 50% of white are eligible, but only 16% of African Americans are eligible (roughly 70% of Asians are eligible.)

    If you your job requires an IQ of 115 (one standard deviation above the mean), and I think it is fair to say that CEOs of large companies require at least an IQ of 115, then roughly 16% of whites are eligible but a little under 2.5% of African-Americans are (again, 30% of Asians are eligible.) If anyone has a case for being discriminated against, it is Asian-Americans.

    Lest you believe that the African-Americans average IQ is the result of systemic racism, the average IQ of continental Africans is actually much lower than 85.

    • #21
    • October 8, 2020, at 5:56 AM PDT
    • 2 likes
  22. James Gawron Thatcher
    James GawronJoined in the first year of Ricochet Ricochet Charter Member

    Richard Epstein: The great mistake of the 1964 Civil Rights Act was to adopt an explicit colorblind standard for employment under Title VII, which had the effect of slowing down the introduction of affirmative action programs that might have led to more African-American employees in the workplace, especially in unionized firms.

    Richard,

    I could not disagree with you more. The great strength of the 1964 Civil Rights Act was adopting its explicit colorblind standard. Employing racism to defeat racism was and is an utterly stupid idea. It didn’t work and it won’t ever work. For every problem that it solves it creates three more.

    No, no, NO!

    Regards,

    Jim

    • #22
    • October 8, 2020, at 8:09 AM PDT
    • 2 likes
    • This comment has been edited.
  23. MISTER BITCOIN Member

    https://townhall.com/tipsheet/elliebufkin/2020/10/09/yale-university-sued-by-doj-for-discriminatory-admission-policies-n2577773

    Yale gets 600 million bucks a year from federal govt

     

    • #23
    • October 9, 2020, at 6:07 PM PDT
    • Like
  24. The Reticulator Member

    Pony Convertible (View Comment):

    Dr. Thomas Sowell made a great point about affirmative action. He pointed out that with most government programs you can at least see who benefits at a cost to others. For example, a sugar growers benefit from sugar tariffs at the cost of sugar consumers. With affirmative action you can’t find anyone who benefits. It doesn’t even help those it was intended to help.

    The diversity officers who are in charge of these programs benefit, along with their associated staffs. It’s getting to be a sizable interest group.

    • #24
    • October 10, 2020, at 8:34 AM PDT
    • 1 like