Posted: Mon 29 Aug 2005 03:05 Post subject: D.N.A. and the Future of Affirmative Action
There is great danger in the government using the new science of genetic testing to racially classify its citizens:
Quote:
IV. D.N.A. and the Future of Affirmative Action
If current demographic trends continue, over the next few decades the United States will become more diverse. The Census Bureau estimates that the number of non-Hispanic whites may shrink to less than half of the population before 2060 and that Hispanics will soon outnumber blacks. As intermarriage rates continue to rise, more and more Americans will consider themselves multiracial. This is a recipe for conflicts over affirmative action and public entitlements.
To better understand these coming battles, I phoned Peter H. Schuck, a professor at Yale Law School and the author of ''Diversity in America: Keeping Government at a Safe Distance.'' Schuck emphasized what he called ''the growing and palpable absurdity of color-coding and racial preferences in a population as hybridized, individualistic and immigration-driven as ours.'' He predicted a rise in the number of state limitations or bans on affirmative action, as well as the increasing fragility of Grutter v. Bollinger, the 5-4 Supreme Court decision in 2003 that upheld affirmative action in higher education.
In her opinion for the court in Grutter, Sandra Day O'Connor noted that ''it has been 25 years'' since the court first approved the use of racial preferences in higher education, and she added that ''since that time, the number of minority applicants with high grades and test scores has indeed increased.'' O'Connor concluded hopefully, ''We expect that 25 years from now, the use of racial preferences will no longer be necessary.''
What to make of O'Connor's prediction? There's no guarantee, first of all, that in 25 years O'Connor's opinion will still be the law of the land. In Grutter, she cast the swing vote on a divided court, and if Roberts succeeds her, he may view affirmative-action programs less indulgently. (As a young Justice Department official in 1981, he wrote a biting criticism of a defense of a federal affirmative-action program by the outgoing head of the United States Commission on Civil Rights.) Even if the Supreme Court continues to approve of affirmative action in higher education in 25 years, it's possible to imagine a challenge to the policy from a rejected white applicant, arguing, in effect, that O'Connor had promised that affirmative action would no longer be necessary by 2028. In response, defenders of affirmative action might argue that O'Connor was too optimistic, and that racial preferences were still necessary to maintain educational diversity in the face of continuing gaps in grades and test scores.
But would this reply persuade the court to preserve affirmative action beyond its expiration date? Schuck pointed to a recent paper from the National Bureau of Economic Research expressing skepticism about O'Connor's prediction. The study notes that the gap between white and black test scores, which narrowed in the 80's, actually widened in the 90's. And the authors of the study conclude that black economic gains over the next 25 years are likely to lead to less than 20 percent of the level of black representation at universities that affirmative action currently guarantees. How a justice like Roberts, presumably an affirmative-action skeptic, would respond if this pessimistic situation came to pass is hard to predict, but he might be reluctant to extend the term for another 25 years with no end in sight.
Affirmative-action programs may also be challenged by people other than disappointed white applicants. As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a colleague of Schuck's at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage. ''I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,' '' he said. ''The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.' ''
In response to disputes like this, Amar suggested, state legislatures might conclude that ''the social-understanding test is unacceptably fuzzy, and at least science can give us some rules. So the government might require a genetic test because it's easy to administer.'' If, however, a state legislature were to declare that anyone with a drop of African-American blood is entitled to be considered black, the policy might provoke a bitter Supreme Court challenge. ''It would recall the shameful history in times of slavery and Jim Crow,'' Schuck told me, ''in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites.'' Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. ''I think as pressure on affirmative-action programs increases,'' he said, ''affirmative-action programs will have to make refined judgments about eligibility.''
From: NEW YORK TIMES MAGAZINE | August 28, 2005
Roberts v. the Future
By JEFFREY ROSEN
Posted: Wed 31 Aug 2005 15:10 Post subject: Re: D.N.A. and the Future of Affirmative Action
Akhil Reed Amar wrote:
State legislatures might conclude that ''the social-understanding test is unacceptably fuzzy, and at least science can give us some rules. So the government might require a genetic test because it's easy to administer.
I doubt this. The assumption above is that legal Blackness has some objective basis, either in ethnic self-identity or in ancestry. Nothing could be further from the truth.
In cases where Blackness is rewarded, legislatures and courts throughout the U.S. have consistently held that a claimant's Blackness is determined solely by the testimony of local Black political leaders, and has no basis in either ethnic self-identity nor in genetic ancestry. I see no hint of a trend to alter how the law decides which side of the color line you are on.
Whether or not the power that Black politicians now wield to dole out public benefits will be tolerated by voters much longer is another issue. After all, White politicians have always similarly looted the public coffers in order to reward their supporters.
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