Possible misconceptions about Affirmative Action

[Dembadon]

This is intended to be a continuation of a discussion in this thread, which might might've been off-topic.

I'm not sure about the "establishing social myths" part (not even sure what that means, but what AA does is fight discrimination with discrimination. ...

How does AA discriminate? Is there any evidence of discrimination due to AA?

... Affirmitive action is designed to make sure that there are similar number of minorites to majorities, regardless of if they are qualified.

I'll give you an example, when affirmative action was put in place, my office was a good balance of whites and hispanics (TX), but no blacks lived in the area. So suddenly we had a quota of blacks to hire or be financially penalized, so we stopped hiring anyone but blacks. No blacks applied. So we went after black people, they failed the entrance test and couldn't be hired. Our employee numbers were dwindling since we were allowed to hire only blacks. So we waived the employment tests, they were given 3 or more months to complete a 2 week training course, most couldn't pass training. So, we hired them anyway so that we could start hiring people capable of doing the job. The ones that failed were on one side of the room where they'd gossip, paint their fingernails and read magazines. They were union, and affirmative action, couldn't be fired.

Now there were black people that did pass and did well.

...

Affirmative action (placing unquailified people into jobs) is not the answer, but fairness in hiring people of equal qualifications is.

Affirmative action does not require a company to hire unqualified people. It also does not impose quotas. In fact, quotas in AA programs are prohibited. The policy you described leads me to believe the company didn't understand what AA is.

Based on the utilization analyses under Executive Order 11246 and the availability of qualified individuals, the contractors establish goals to reduce or overcome the under-utilization. Good faith efforts may include expanded efforts in outreach, recruitment, training and other activities to increase the pool of qualified minorities and females. The actual selection decision is to be made on a non-discriminatory basis.

emphasis added

Goals, Timetables & Good Faith Efforts:

The numerical goals are established based on the availability of qualified applicants in the job market or qualified candidates in the employer’s work force. Executive Order numerical goals do not create set-asides for specific groups, nor are they designed to achieve proportional representation or equal results. Rather, the goal-setting process in affirmative action planning is used to target and measure the effectiveness of affirmative action efforts to eradicate and prevent discrimination. The Executive Order and its supporting regulations do not authorize OFCCP to penalize contractors for not meeting goals. The regulations at 41 CFR 60-2.12(e), 60-2.30 and 60-2.15, specifically prohibit quota and preferential hiring and promotions under the guise of affirmative action numerical goals. In other words, discrimination in the selection decision is prohibited.

emphasis added

http://www.dol.gov/ofccp/regs/compliance/aa.htm#.UO4G5onjn48

 

[Astronuc]

It may be more a case of misapplication than misconception.

http://topics.nytimes.com/topics/reference/timestopics/subjects/a/affirmative_action/index.html
The Bakke case is one of the more infamous cases.

. . . .
In 1978, the Supreme Court in its Regents v. Bakke ruling outlawed numerical racial quotas in admissions to public universities, but upheld the more common practice of considering race as a “plus factor.’' Since then, the courts have added more restrictions to the practice, but have stopped short of banning its use.

. . . .

There is a current case in the Supreme Court -

On Oct. 10, 2012, the Supreme Court revisited affirmative action in public university admissions again, when it heard arguments on Fisher v. University of Texas, No. 11-345. The case was brought by Abigail Fisher, a white woman who said she had been denied admission to the University of Texas on account of her race.

During the hearing, the justices debated the nature and value of diversity in higher education and the role of the courts in policing how much weight admissions officers may assign to race. The questioning was exceptionally sharp, but the member of the court who probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs.

. . . .

The concern has been that the drive toward diversification has resulted in lower standards in academic and professional standards/proficiency.

 

[russ_watters]

This is intended to be a continuation of a discussion in this thread, which might might've been off-topic.

How does AA discriminate? Is there any evidence of discrimination due to AA?

First, we must understand the goal and definnition of Affirmative Action:

Affirmative action, known as positive discrimination in the United Kingdom, refers to policies that take factors including "race, color, religion, gender, sexual orientation, or national origin"[1] into consideration in order to benefit an underrepresented group "in areas of employment, education, and business".[2]

http://en.wikipedia.org/wiki/Affirmative_action

Next, we must understand the definition of the word "discriminate":

Discrimination is the prejudicial or distinguishing treatment of an individual based on their actual or perceived membership in a certain group or category, such as their race, gender, sexual orientation, ethnicity, national origin, or religion.

http://en.wikipedia.org/wiki/Discrimination

Recognize that the definition does not specify whether the treatment is positive or negative, but then also recognize that in a competitive scenario, discrimination for someone must logically result in discrimination against someone else.

Thus, AA is by definition, a policy of discrimination. And apparently, by name, in the UK -- where it is used synonymous (and honestly) with "positive discrimination".

Now, AA takes a lot of forms and laws vary widely, but the overall goal is the same. There have been many challenges and many attempts to make promotion of one racial/gender group over another jive with the concept of civil rights. Many of these have resulted in vague laws that are, nevertheless, carried out in ways that discriminate.

Affirmative action does not require a company to hire unqualified people.

Interesting choice of words. In Ricci v DeStefano, it resulted in promoting no one because there were no blacks who scored high enough in a promotion exam.
http://en.wikipedia.org/wiki/Ricci_v._DeStefano
The action taken by the city was in keeping with Affirmative action and the case was decided on the grounds that it discriminated against the white and Hispanic firefighters who passed the exam.

Evo also gave a personal anecdote about positions not able to be filled because of lack of available minority applicants.

So it may not "require unqualified" people to be hired/accepted for college, it does at least result in/require less qualified people be hired/accepted.

It also does not impose quotas. In fact, quotas in AA programs are prohibited.

Quotas were explicitly included in AA until they were struck down by the supreme court. Now they tend to be more subtle, but they do still exist. Court cases are tough because any decision that strikes down an explicit or de facto quota instantly become past tense. Ricci vs DeStefano was 2009. Is that recent enough? They may not have had a specific quota in mind, but they knew that "0" was not enough.

Here's the other side of the coin and perhaps more direcly related to the question: Grutter v. Bollinger, 2003: http://en.wikipedia.org/wiki/Grutter_v._Bollinger

This case ruled that race could be used as a part of the admissions policy at the university of Michigan. This case appears to me to be an example of the court not seeing the forest through the trees. The majority opinion basically acknowledges that AA is discriminatory, but says it is ok because it is needed.

The policy you described leads me to believe the company didn't understand what AA is.

I doubt it. Here's the City of Philadelphia policy on women/minority businesses getting city contracts and a case where someone violated it:

ACS was required by contract to meet a minority-, women- and disabled-owned business entity (M/W/DBE) participation range of 20 to 25 percent, established by the Office of Economic Opportunity pursuant to Executive Order 02-05, which has since been replaced by Executive Order 03-12.

http://cityofphiladelphia.wordpress...eement-with-aramark-and-strother-enterprises/
http://mbec.phila.gov/home/forms/eo%203-12.pdf

20-25% sounds like a quota to me. Not sure how that is still legal, but city politics is often a funny thing.

More generally, I reiterate that a program that is designed to artificially elevate one group at the expense of another is inherently/by definition, discriminatory. A quota was an easy way to show discrimination, but it isn't the only way. Heck, if we flip the coin over and examine the programs from the opposite race, the issue becomes obvious: Would a program actually titled and designed to promote - by any means - the receipt of contracts/jobs by white business owners be considered discriminatory? Perhaps we need to institute an Affirmative Action program to increase diversity (increase the number of whites) in the NBA Player's Union?

I'd like to hear your take on AA, though. How do you think that a policy that actively makes-up for past discrimination isn't giving certain groups a push that others don't get? Since the policies and laws vary widely, perhaps you should tell me how you think it can be done in a way that doesn't discriminate, then I'll tell you if I see discrimination in your policy that you don't see.

 

[Evo]

Affirmative action does not require a company to hire unqualified people. It also does not impose quotas. In fact, quotas in AA programs are prohibited. The policy you described leads me to believe the company didn't understand what AA is.

Sorry dembadon, but you're wrong, it's all right here. It was the law. If you (company) didn't meet your minority quota, you were fined. Obviously no one actually said "hire incompetant people to meet your quota". But if that was the only way to meet your quota, that's what you did.

1965 - U.S. Executive Order 11246 and Executive Order 11375

The order specifically requires certain organizations accepting federal funds to take affirmative action to increase employment of members of preferred racial or ethnic groups and women. Any organization with fifty or more employees and an aggregate revenue exceeding $50,000 from a single federal contract during a twelve month period must have a written affirmative action plan. This plan must include goals and timetables for achieving full utilization of women and members of racial minorities, in quotas based on an analysis of the current workforce compared to the availability in the general labor pool of women and members of racial minorities

The order is enforced by the Office of Federal Contract Compliance Programs of the Employment Standards Administration of the U. S. Department of Labor and by the Office of Civil Rights of the Justice Department.

http://en.wikipedia.org/wiki/Affirmative_action_in_the_United_States#Legal_history

I was there, I had to deal with the company not being able to hire anyone until we waived employment criteria. That's a fact. I worked for AT&T.

If you didn't believe me, that's fine, you just had to ask me if I could back up what I said. What actually went on is even worse then what is publicly admitted, but we'll go by the quotas and waiver of employment tests that went on at that time. What you posted may apply now, and wishful thinking about what actually happened in the past. Were blacks behind because of discrimantion? Absolutely. Was the answer to throw them into positions they weren't qualified for, absolutely not. The government decided that they would place the burden directly onto companies instead of taking responsibility and providing training and support for those that wanted to better themselves, IMO.

 

[Drakkith]

The majority opinion basically acknowledges that AA is discriminatory, but says it is ok because it is needed.

I like the way you worded this Russ. I believe this is the key to understanding AA. The legal discrimination of certain races or groups on the grounds that it helps them, and by extension society overall more than it harms. Whether that is true or not is...much harder to figure out. To me it's the same old "The good of society vs the good of the individual" issue. It's certainly not fair to people not in those groups. And then the argument I usually see after that is that people not in those groups, IE whites, males, etc don't need the help since they already have little discrimination issues overall as a group. But again, this is "overall", not on an individual basis.

 

[Evo]

And more on quotas and waiving employment tests.

In 1966, the U.S. Department of Labor began collecting employment records with breakdowns by race in order to evaluate hiring practices, overturning earlier policies of the Eisenhower and Kennedy administrations. In 1968, the Office of Federal Contract Compliance issued regulations which required, for the first time, that specific targets be set by which the effects of affirmative action programs could be evaluated. The regulations stated that "the contractor's program shall provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of minority groups, including, when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity." It was in these regulations and analogous measures by the EEOC that the debate over affirmative action quotas had its origins.

Goals and timetables were established by the U.S. Department of Labor using "utilization analysis," which statistically compared the proportion of employed women and minorities in a firm with the proportion of women and minorities in the regional workforce, deriving a measure of what the department called "disparate impact." In the absence of discrimination, it was assumed that these proportions would and should be roughly equal. Since these regulations focused on results and not intent, the structural nature of discrimination was officially recognized. In addition, these regulations provided an official and measurable basis for the preferential treatment of affected groups.

In the landmark Griggs v. Duke Power Co. case of 1971, the Supreme Court unanimously ruled against Duke's requirement of high school diplomas or IQ tests for those applying for unskilled jobs. The decision held that "Title VII forbids not only practices adopted with a discriminatory motive, but also practices which, though adopted without discriminatory intent, have a discriminatory effect on minorities and women." The ruling provided a legal foundation for cases of "disparate impact," asserting that employers may not use job requirements that adversely affect women and minorities unless required by what it termed "business necessity." (For example, in the case of serious health or safety threats to co-workers or customers.)

Continued...

http://definitions.uslegal.com/a/affirmative-action/

 

[russ_watters]

I like the way you worded this Russ. I believe this is the key to understanding AA. The legal discrimination of certain races or groups on the grounds that it helps them, and by extension society overall more than it harms. Whether that is true or not is...much harder to figure out. To me it's the same old "The good of society vs the good of the individual" issue. It's certainly not fair to people not in those groups. And then the argument I usually see after that is that people not in those groups, IE whites, males, etc don't need the help since they already have little discrimination issues overall as a group. But again, this is "overall", not on an individual basis.

Thanks.

I completely accept the noble goal of AA, but:
1. The US Constitution does not allow the logic of AA. The Constitution protects individual rights. Period.
2. I'm not typically a believer in fight-fire-with-fire/ two wrongs make a right logic.

Whether Constitutionally justifiable or not, there was a time and there were places in our history where discrimination as policy probably helped counter-act other discrimination. But at the same time, such policies breed resentment that can counter-act their goals. So I think it may be true that AA helped at one time more than it hurt, but ultimately I think it is prolonging/keeping open racial divides by its continued existence.

 

[russ_watters]

Requoting Evo's quote:

In the landmark Griggs v. Duke Power Co. case of 1971, the Supreme Court unanimously ruled against Duke's requirement of high school diplomas or IQ tests for those applying for unskilled jobs. The decision held that "Title VII forbids not only practices adopted with a discriminatory motive, but also practices which, though adopted without discriminatory intent, have a discriminatory effect on minorities and women." The ruling provided a legal foundation for cases of "disparate impact," asserting that employers may not use job requirements that adversely affect women and minorities unless required by what it termed "business necessity." (For example, in the case of serious health or safety threats to co-workers or customers.)

Not to start another discussion of judicial activism, but this is an example of the courts trying to find a way to make AA justifiable even if it contradicts Constitutional intent.

Finding good workers is hard. The things that make a worker good are difficult to identify in a job application or interview. So you do the best you can by using quantifiable proxy measures of applicant quality. A high school diploma may not be needed for collecting trash, but getting a high school diploma shows a certain level of responsibility that tends to provide a higher quality worker than a person who doesn't have one. The court should recognize that:

1. General quality is always desirable.
2. The policy is color-blind at face value and so cannot be a violation of anti-discrimination law. There is no such thing as a "discriminatory effect".

 

[Skrew]

When looking at the wording of the civil rights acts, one can only question how such wording got written into a law.

Any type of standard will have a "Disparate impact" on some group, but apparently the only groups which matter are those which are not white and not male.

http://en.wikipedia.org/wiki/Disparate_impact

I don't mind the government directly funding or providing incentives to help ex-slaves but that's not what this legislation did. The whole "Disparate impact" mentality means you cannot have any standards which might inadvertently "discriminate" against "minority groups".

These laws amount to saying "if your company is too white or too male, we're going to fine you". I find it absolutely absurd.

Also what's even more absurd is groups using AA who should never have gotten it to begin with - if you immigrated here by choice, why should you get any additional help? Ex-slaves are the only ones who should have any claim at all.

 

[Evo]

It was a bad time. The government was facing a racial crisis. So, instead of doing the right thing and providing training and subsidies for blacks that wanted and were willing to better themselves, they decided to force businesses to hire completely unqualified people (in many cases) in order to calm things down. And I specify blacks because that was where the quotas were in my company. These were techinical positions that needed at least some aptitude.

 

[Dembadon]

First, we must understand the goal and definnition of Affirmative Action: http://en.wikipedia.org/wiki/Affirmative_action

Next, we must understand the definition of the word "discriminate": http://en.wikipedia.org/wiki/Discrimination

Recognize that the definition does not specify whether the treatment is positive or negative, but then also recognize that in a competitive scenario, discrimination for someone must logically result in discrimination against someone else.

Thus, AA is by definition, a policy of discrimination. And apparently, by name, in the UK -- where it is used synonymous (and honestly) with "positive discrimination".

There are two uses for the word discriminate, only one of which is relevant to what AA seeks to prevent. In this context, the distinction is negative. Here are the entries for "discriminate" in the Oxford English dictionary:

1 : recognize a distinction; differentiate
2 : make an unjust or prejudicial distinction in the treatment of different categories of people or things, esp. on the grounds of race, age, or sex.

"Unjust" and "prejudicial" are both negative.

Now, AA takes a lot of forms and laws vary widely, but the overall goal is the same. There have been many challenges and many attempts to make promotion of one racial/gender group over another jive with the concept of civil rights. Many of these have resulted in vague laws that are, nevertheless, carried out in ways that discriminate.

In other words, a misapplication of the concept of AA, not a fault regarding the intentions of AA programs or their requirements? If there are vague laws derived from AA that violate civil rights, then allow our judicial system to do its job and sort them out.

Interesting choice of words. In Ricci v DeStefano, it resulted in promoting no one because there were no blacks who scored high enough in a promotion exam.
http://en.wikipedia.org/wiki/Ricci_v._DeStefano
The action taken by the city was in keeping with Affirmative action and the case was decided on the grounds that it discriminated against the white and Hispanic firefighters who passed the exam.

So, the city made an emotional decision? Fear of a lawsuit does not mean the fear was rationally based or legitimate. If the city had a satisfactory AAP for whatever fire program was in question, there would have been no grounds for a lawsuit.

Also, not sure where you got "no one was promoted". From the wiki you linked:

New Haven reinstated the examination results and promoted 14 of the 20 firefighters within months of the decision.

Evo also gave a personal anecdote about positions not able to be filled because of lack of available minority applicants.

Evo's anecdote showed her company's willingness to hire unqualified people rather than implementing a satisfactory AAP. In other words, the company should have refused the unqualified people, and as long as they had an AAP program which:

Expanded efforts in outreach, recruitment, training and other areas...

for African Americans, then there would have been no grounds on which to penalize her company, as they would have met the requirements for a satisfactory AAP per http://www.dol.gov/ofccp/regs/compliance/fs11246.htm#.UO4_AYnjn48.

Quotas were explicitly included in AA until they were struck down by the supreme court. Now they tend to be more subtle, but they do still exist. Court cases are tough because any decision that strikes down an explicit or de facto quota instantly become past tense. Ricci vs DeStefano was 2009. Is that recent enough? They may not have had a specific quota in mind, but they knew that "0" was not enough.

Evo mentioned having a specific quota, which, as I pointed out, is prohibited. I did not claim subtle quotas are nonexistent.

Here's the other side of the coin and perhaps more direcly related to the question: Grutter v. Bollinger, 2003: http://en.wikipedia.org/wiki/Grutter_v._Bollinger

This case ruled that race could be used as a part of the admissions policy at the university of Michigan. This case appears to me to be an example of the court not seeing the forest through the trees. The majority opinion basically acknowledges that AA is discriminatory, but says it is ok because it is needed.

Well, more precisely, the majority opinion acknowledged that the University of Michigan's AA policy is discriminatory. It was not a case about whether AA as a concept is discriminatory. The ruling unfortunate. I don't believe the decision is justifiable under the goals of AA.

I doubt it. Here's the City of Philadelphia policy on women/minority businesses getting city contracts and a case where someone violated it: http://cityofphiladelphia.wordpress...eement-with-aramark-and-strother-enterprises/
http://mbec.phila.gov/home/forms/eo%203-12.pdf

20-25% sounds like a quota to me. Not sure how that is still legal, but city politics is often a funny thing.

So, you disagree with the city's implementation of affirmative action. I do too, since it is illegal per the aforementioned executive order. But, again, this an implementation issue rather than AA being a fundamentally flawed concept.

More generally, I reiterate that a program that is designed to artificially elevate one group at the expense of another is inherently/by definition, discriminatory. A quota was an easy way to show discrimination, but it isn't the only way. Heck, if we flip the coin over and examine the programs from the opposite race, the issue becomes obvious: Would a program actually titled and designed to promote - by any means - the receipt of contracts/jobs by white business owners be considered discriminatory? Perhaps we need to institute an Affirmative Action program to increase diversity (increase the number of whites) in the NBA Player's Union?

I'd like to hear your take on AA, though.

AA programs are not allowed to "artificially elevate", nor is that the intention behind AA. If companies are choosing to implement AAPs that violate civil rights, then let the justice system take care of them. As it stands right now, there is nothing in Executive Order 11246 or the Dept. of Labor's definition of AA that violates Title VII.

How do you think that a policy that actively makes-up for past discrimination isn't giving certain groups a push that others don't get?

We aren't talking about hand-outs here. AA endeavors to ensure that "certain groups" have access to what "others" already have.

 

[Evo]

Dembadon, did you see my links? Quotas were mandated by law. Employment apptitude tests were not allowed unless it was a critical position. Please read my posts.

You are looking at what AA is now and a fairy tale look back that is ignoring the laws in effect in the 60's and 70's. Wishful thinking doesn't erase the laws or the past.

 

[Dembadon]

Sorry dembadon, but you're wrong, it's all right here. It was the law. If you (company) didn't meet your minority quota, you were fined. Obviously no one actually said "hire incompetant people to meet your quota". But if that was the only way to meet your quota, that's what you did.



http://en.wikipedia.org/wiki/Affirmative_action_in_the_United_States#Legal_history

I was there, I had to deal with the company not being able to hire anyone until we waived employment criteria. That's a fact. I worked for AT&T.

If you didn't believe me, that's fine, you just had to ask me if I could back up what I said. What actually went on is even worse then what is publicly admitted, but we'll go by the quotas and waiver of employment tests that went on at that time. What you posted may apply now, and wishful thinking about what actually happened in the past. Were blacks behind because of discrimantion? Absolutely. Was the answer to throw them into positions they weren't qualified for, absolutely not. The government decided that they would place the burden directly onto companies instead of taking responsibility and providing training and support for those that wanted to better themselves, IMO.

Sorry you had to deal with that. I went by what is currently stated on the Department of Labor's website regarding AA and the executive order. I didn't know that quotas were originally part of the law.

 

[Dembadon]

Dembadon, did you see my links? Quotas were mandated by law. Employment apptitude tests were not allowed unless it was a critical position. Please read my posts.

You are looking at what AA is now and a fairy tale look back that is ignoring the laws in effect in the 60's and 70's.

I had Russ's post quoted and open before I saw your post. My response is above.

 

[Evo]

I had Russ's post quoted and open before I saw your post. My response is above.

I saw that you were looking at recent laws.

It was a different world back then.

 

[russ_watters]

There are two uses for the word discriminate, only one of which is relevant to what AA seeks to prevent. In this context, the distinction is negative. Here are the entries for "discriminate" in the Oxford English dictionary:

1 : recognize a distinction; differentiate
2 : make an unjust or prejudicial distinction in the treatment of different categories of people or things, esp. on the grounds of race, age, or sex.

"Unjust" and "prejudicial" are both negative.

Fine. But as I said giving one group a push necessarily pushes the other group in the opposite direction. Giving one person a job or a spot in a college denies it to another person. It includes negative discrimination because it includes positive discrimination. The two sides of the same coin cannot be decoupled from each other. If you disagree, tell me how.

In other words, a misapplication of the concept of AA, not a fault regarding the intentions of AA programs or their requirements? If there are vague laws derived from AA that violate civil rights, then allow our judicial system to do its job and sort them out...

AA endeavors to ensure that "certain groups" have access to what "others" already have.

HOW? Please give me an example of a policy that fits the goal of AA but is non-discriminatory. I maintain that by definition it is discriminatory and therefore it is just a cop-out to say that the fault lies on the policies, not the general concept. I also think it is a cop-out to give the "concept" a pass when it has resulted in so much flawed implementation. Theory is all well and good, but reality is in the implementation. The reality is that AA is discriminatory because the policies that result from it are discriminatory.

At this point though, we should at least be able to agree that as implemented, AA policy is often* discriminatory. Right?

*Pending examples, we may have to switch "often" for "always" if you can't come up with any non-discriminatory AA policies.

 

[Jack21222]

I think the biggest point of contention in this thread is Dembadon has some kind of Platonic Ideal about what Affirmative Action "really is," and blames the various implementations of AA for not lining up to that ideal. Any time something unjust is done in the name of Affirmative Action, he basically says "well, that's not Affirmative Action. They're doing it wrong. No true affirmative action program would do such a thing." (read: No True Scotsman fallacy).

Others in this thread, myself included, see Affirmative Action as it is implemented in the real world. AA is not some kind of abstract concept that exists separate from reality. AA is the sum total of how it's used. As it stands right now, it is common for employers to err on the side of caution and hire a less-qualified minority over a more-qualified white male if the balance is too out-of-whack. Or, to simply hire nobody unless it's a minority. They might even be justified in doing so. Even if an Affirmative Action lawsuit is baseless and would be thrown out of court, lawsuits are often very expensive to fight, and there's always the risk of negative press along the lines of "Did company A refuse to hire this woman because she's black? More at 11."

Thousands of hiring decisions are made every day, and you're naive if you think that none of them are made in fear of an AA lawsuit, even if that lawsuit would be without merit. You have to include the real-world effects of AA, and not look at in in a vacuum.

 

[Kholdstare]

Thousands of hiring decisions are made every day, and you're naive if you think that none of them are made in fear of an AA lawsuit, even if that lawsuit would be without merit. You have to include the real-world effects of AA, and not look at in in a vacuum.

HR departments of US companies are totally afraid of lawsuits against the company. They might rather sacrifice a little bit of quality, instead of money and reputation.

 

[russ_watters]

Jack - I agree. So I would also ask Dembadon what that "ideal" is. What is the alternate definition of AA?

I would also like to point out that logic tends to demand that the original implementation was more in line with the theory, not less. Changes forced on AA advocates by the courts would be pushing them away from their original intent.

 

[BobG]

Affirmative action is bad. It's a form of discrimination in itself.

That doesn't mean it isn't a viable solution for a problem that's even worse than affirmative action. Sometimes there are no "good" solutions - only imperfect solutions that make a really bad situation better.

In this case, a bad solution such as affirmative action is a better solution than simply saying we'll stop discriminating from here on out. Thinking a simple cessation of discrimination solves the problem is even more naive than imagining some "ideal" form of affirmative action.

Having closed a race out of any job that provides a living wage, you've locked in a cycle that will accomplish the goals of discrimination even if discrimination now stops.

For example: the Supreme Court's ruling against requiring a high school diploma for unskilled jobs. In a normal world, russ is correct that a high school diploma is an indication of general quality of an employee. But that assumes that the reason for not completing high school is laziness or stupidity.

In a world where only unskilled sub-subsistence jobs are available, a family needing income to survive will be sending their kids out to work as soon as they're physically able - especially if discrimination is going to prevent that high school diploma from being worth much.

Simply stopping discrimination eliminates one part of that equation - a high school diploma will finally be worth something, even to the victims of discrimination. But it doesn't change the current situation, which is that the family needs income so badly that it can't afford the luxury of having an able-bodied worker lazing around all day in school when they could be helping support the family.

And that fact completely distorts the idea of using a high school diploma as a requirement for an unskilled job. Which worker is really higher quality? The 18-year-old high school graduate that's never worked a day in their life or the 18-year-old with 6 years of work experience?

Of course, child labor laws will fix part of that problem. But child labor laws are discrimination, as well, and also have a down side. They're depriving poverty stricken families from a needed income. Of course, child labor laws are only prolonging poverty for a few more years, while the impact of a high school diploma will last around 50 years for a worker, so the trade off is worth it - even given that some adolescents will be working under the table or find a job in an unregulated industry, such as drugs. It improves things for enough people that the benefits outweigh the costs.

Problems of past discrimination have to be fixed at least to the point that you can realistically start to apply normal standards (such as requiring a high school degree).

But, while I agree affirmative action was necessary to correct some really bad problems (especially in the South), I do think it's important to remember we're choosing a solution that's inherently bad in its own right. You don't have to create a perfectly level playing field before you start thinking about phasing out affirmative action. You only have to get the playing field close enough to level that elimination of future discrimination will eventually do the rest.

Where that point is where you consider the playing field level enough is certainly a debatable point - and perhaps a point that's overdue to be debated. And I guess a good crossover point is where the discriminative side of affirmative action starts to hurt almost as many people as it helps, but that's based on the assumption that avoiding discrimination is a good thing in itself, regardless of the balance of good and bad - the idea that things have to be really bad to justify affirmative action. But I could see where a person with a more neutral opinion of discrimination might feel the crossover point would be where an equal number of people are being hurt and helped.

 

[Dembadon]

Fine. But as I said giving one group a push necessarily pushes the other group in the opposite direction. Giving one person a job or a spot in a college denies it to another person. It includes negative discrimination because it includes positive discrimination. The two sides of the same coin cannot be decoupled from each other. If you disagree, tell me how.

Discrimination is an exclusionary concept. Exclusion does not follow from inclusion. Including more people in "the pool" does not exclude others. It simply increases competition. It can be argued that competition actually makes for better candidates.

HOW? Please give me an example of a policy that fits the goal of AA but is non-discriminatory. I maintain that by definition it is discriminatory and therefore it is just a cop-out to say that the fault lies on the policies, not the general concept. I also think it is a cop-out to give the "concept" a pass when it has resulted in so much flawed implementation. Theory is all well and good, but reality is in the implementation. The reality is that AA is discriminatory because the policies that result from it are discriminatory.

Here is an example of an AAP that meets the Dept. of Labor's standards. Pages 15 through 19 show problem areas and their possible solutions. I was not able to find any unjust or prejudicial treatment in the solutions proposed.

http://www.dol.gov/ofccp/regs/compliance/pdf/sampleaap.pdf

At this point though, we should at least be able to agree that as implemented, AA policy is often* discriminatory. Right?

"Often" has yet to be shown. Can you provide a study that shows a significant number of legitimate discrimination cases against white males due to AA? Let's be conservative and define "often" as 20% of discrimination cases filed.

I think the biggest point of contention in this thread is Dembadon has some kind of Platonic Ideal about what Affirmative Action "really is," and blames the various implementations of AA for not lining up to that ideal. Any time something unjust is done in the name of Affirmative Action, he basically says "well, that's not Affirmative Action. They're doing it wrong. No true affirmative action program would do such a thing." (read: No True Scotsman fallacy).

"Platonic Ideal"? This isn't my personal AA theory. The Dept. of Labor has a clear description of the executive order and AA on their website, and even provides a sample AAP that meets their standards.

Are you suggesting that we abandon policies that aren't implemented properly? Just because something is poorly implemented does not mean the foundation is flawed. The Constitution has been amended many times; we didn't throw it out when we encountered wacky legal derivations that lead to injustices. You don't just throw something out that might be able to be fixed with amendments and fine-tuning.

 

[Dembadon]

... The reality is that AA is discriminatory because the policies that result from it are discriminatory.

...

That's a dangerous line of reasoning. Is quantum mechanics flawed because some crackpot derived mystical bullcrap from his/her "experiments"?

 

[Evo]

"Often" has yet to be shown. Can you provide a study that shows a significant number of legitimate discrimination cases against white males due to AA? Let's be conservative and define "often" as 20% of discrimination cases filed.

It's called "reverse discrimination", and wasn't even an issue that was considered for probably the first 20 years, IMO.

Here is just a sample of cases that went to court. Unfortunately many people don't know why they were passed over, or they may have their suspicions, but employers can easily hide a hiring decision.

http://www.doi.gov/pmb/eeo/cases/reverse.cfm

 

[Skrew]

Equality of opportunity and equality of outcome are two different things and even equality of opportunity doesn't mean everything is or should be equal, only that you will have a chance, some will have better chances then others.

People who support AA want equality of outcome, this is fundamentally flawed because it uses government force to prop up certain groups at the expense of groups that have performed better. It's government interference which goes directly against american ideals.

No one tells the NBA to expand its pool or to try to include more white players, it's assumed that for what ever reason there are mostly blacks in the NBA, maybe because of skill, maybe because of culture but regardless it's not questioned. When there are mostly white males in an electrical engineering department, it's considered a terrible thing.

Fundamentally it's up the black population to better itself, I don't believe it's the responsibility of any business or university to lower their standards in order to accommodate them(or anyone else).

 

[russ_watters]

Discrimination is an exclusionary concept. Exclusion does not follow from inclusion. Including more people in "the pool" does not exclude others. It simply increases competition. It can be argued that competition actually makes for better candidates.

Huh?

1. AA does nothing to the qualifications of the pool of applicants, nor does it increase the pool. It only impacts the decision-making process for which applicant gets picked. People make their own decisions on whether or not to apply for jobs/college. Please quote such a policy, if you think I'm wrong about that.

2. If there is 1 job opening and 2 people apply, 1 person gets the job and the other does not, right?! One is included and the other not. That's what most of the lawsuits are about!

I just plain don't understand how you can say that a person who is denied a job/promotion/admission to college because they were the wrong race was not discriminated against.

Here is an example of an AAP that meets the Dept. of Labor's standards. Pages 15 through 19 show problem areas and their possible solutions. I was not able to find any unjust or prejudicial treatment in the solutions proposed.

I'm not going to read through the whole thing. You tell me how the program works either in your own words or with a key quote.

[edit] Scrolling through, it looks mostly like administrative/paperwork description, not a description of how to do AA. However, pages 11 and 12 are about statistics, which fits the previous discussion of the goals: making the fraction of certain minorities in your organization match the fraction in the general public. That's a quota.

"Often" has yet to be shown. Can you provide a study that shows a significant number of legitimate discrimination cases against white males due to AA? Let's be conservative and define "often" as 20% of discrimination cases filed.

I don't count discrimination on the basis of court cases. Things like the Philadelphia policy I linked earlier exist and are not being challenged. Hundreds of companies and thousands of people have been discriminated against because of this quota system over the course of decades.

"Platonic Ideal"? This isn't my personal AA theory. The Dept. of Labor has a clear description of the executive order and AA on their website, and even provides a sample AAP that meets their standards.

Please link and quote if it is that clear-cut.

Are you suggesting that we abandon policies that aren't implemented properly?

No, you're the one who is suggesting that an AA policy that is discriminatory is not following the goal. We're saying it is and I would scrap the concept because it is fundamentally flawed.

Just because something is poorly implemented does not mean the foundation is flawed.

Sometimes it does and sometimes it doesn't. I am arguing this one both ways:

1. The concept is fundamentally flawed.
2. The implementation is bad, because of #1.

Further, if a policy has a lot of problems, resulting in a lot of lawsuits, making major, fundamental changes to how it is implemented (specific quotas were a key component early on in its inception), then that to me sounds like it is based on fundamentally flawed principles.

The Constitution has been amended many times; we didn't throw it out when we encountered wacky legal derivations that lead to injustices. You don't just throw something out that might be able to be fixed with amendments and fine-tuning.

The constitution is a broad document describing our entire federal government. AA is one class of policies. The analogy would better be shown in the adopting then scrapping of the 18th Amendment: a single-issue item in the Constitution.

That's a dangerous line of reasoning. Is quantum mechanics flawed because some crackpot derived mystical bullcrap from his/her "experiments"?

Only if quantum mechanics were at the same state as AA: never having been shown to be anything but crackpot "bullcrap".

 

[Mentalist]

At this point though, we should at least be able to agree that as implemented, AA policy is often* discriminatory. Right?

I don't get it. Any person applying to anything will more than likely have another higher qualified person applying for the same job.

"Better qualified...", if that's the case (I am not black but let's go with the 'better qualified scenario'). I know there was a research candidate that was more qualified than I was and he was a junior with more experience. I didn't have a particularly high grade point average, and my chemistry knowledge was only 1 semester as opposed to his 4 semesters. From all contexts, the guy was obviously qualified for the position, definitely more-so than I was. Yet I got the position.

This, "better qualified person" seems a bit inane to me as someone is always, "better qualified" than another, and I am not naive enough to believe that people are accepted solely based on character either. It is probable that there are cases where a more qualified white is passed over simply because of quota filling, etc... But that doesn't mean that 70% of time a person that is white is passed over for a person that is black (him/her on paper less qualified) is because of color differences alone.

If you get 90% and a person applies to the same job with a 95%, he is better qualified. Then another person applies with a 100%, obviously better qualified. Then a person applies with a 100% and good softs, obviously qualified. Then another person applies with the 100% and even better marks, etc...

I don't get it which is why I am reiterating it here. Obviously accepting the less qualified person puts your company at risk, but there is more variation that goes into something than simply a 'qualified or not scenario'.

What's funny is that you saw each application and deduced the race of the individual of each application. You're basically presuming that the blacks passed over were less qualified than the whites that applied. So you are gauging from possibly 'x' years ago when you were on the job that the blacks that got it were less qualified and the whites were discriminated against?

I find this even more confusing as your presumptions seem to be biased. You'd have to remember every applicant that applied and every applicant that was turned away and their qualification marks. Also, you are completely discounting every black person that was more qualified than the white applicants, yet they were passed over for the lesser black candidate.

Anecdotal evidence marked with inherent bias as you've already presumed more qualified whites applied for the position, were turned down, and no other black person of equal qualification to the white applied. In other words, all black people that applied were the least qualified ones and there weren't any qualified to the level of their white counterparts that applied. All whites that applied were more qualified than the blacks.

But now you want one to agree that, "most of the time whites are discriminated against because the company must hire a lesser qualified black."? I don't believe you.

It seems silly, but I may be wrong. I have not worked outside of an undergraduate laboratory.

No one tells the NBA to expand its pool or to try to include more white players, it's assumed that for what ever reason there are mostly blacks in the NBA, maybe because of skill, maybe because of culture but regardless it's not questioned. When there are mostly white males in an electrical engineering department, it's considered a terrible thing.

A person could make the same remark towards the number of whites that play hockey.

When there are mostly white males in electrical engineering it is considered, "more white males in electrical engineering." We have a pretty big electrical engineering program at my school that has mostly whites in it, a few Asians, and from what I do know, one black person. The occupations one applies to has more to do with culture, and I agree on that, but ability as well.

As to not begin that argument again here, most African Americans do not apply for EE jobs simply because not many blacks go to school for EE. That's my personal opinion, I have absolutely zero evidence supporting it. But that seems to be the case.

I also wanted to add, the black population is low (14%) as well compared to the 72.4% white population. Could this be a result of concentrated culture where it is more daunting for one to venture out of the comfortable zone of the culture any apply towards careers that are dominated by a "person that is different in skin tone"?

In other words, Skrew, and to anyone else, if you see success where you are more dominant can it be classified as the person who is of a particular race going towards where they'd find the most success in? Of course, this is also a generalization for simple purposes. I wonder what those who are sociologists/psychologists think? I also don't understand why race isn't talked about much, but this thread brought it up.

 

[russ_watters]

No one tells the NBA to expand its pool or to try to include more white players, it's assumed that for what ever reason there are mostly blacks in the NBA, maybe because of skill, maybe because of culture but regardless it's not questioned.

My guess? Kids in cities, who are mostly black, grow up playing basketball in playgrounds. Cities have a lot of paved playgrounds with basketball courts and a lot less room for baseball fields. Hence, a lot less black baseball players and a lot more black basketball players.

And you're right: it is even sometimes seen as a problem that baseball doesn't have enough blacks, but never seen as a problem that basketball doesn't have enough whites.

"It dampens my spirit when I come up to spring training and I look at the kids -- I'm not talking about tomorrow, I'm talking about right now -- and don't see any black kids," Aaron told the Atlanta Journal-Constitution recently. "And this is a scene that you see all over the major leagues. This is not only with the Braves. You can go to any ballclub and you see the same thing. ... Something needs to be done about it."

http://www.cbssports.com/columns/story/13222941/too-few-black-players-in-baseball-having-a-hard-time-seeing-it

Could you imagine someone saying "I don't see enough whites in basketball" and not being crucified for it?

 

[BobG]

Actually, you abandon the policies because they've improved things to the point you're satisfied (mission complete) or because they've provided no improvement at all (mission failure). You continue the policies because things are moving in the right direction, but you haven't gotten there yet.

Taking http://www.census.gov/hhes/www/income/data/historical/household/2011/H03W_2011.xls and http://www.census.gov/hhes/www/income/data/historical/household/2011/H03B_2011.xls incomes from 1967 to 2011, tossing them into a spreadsheet, and comparing black incomes as a percentage of white incomes, you have mixed results.

The top 20% of black incomes are between 65% and 70% of the top 20% of white incomes and stayed flat for 45 years.

The middle 5th of black incomes started out less than 60% of the middle 5th of white incomes, has reached as high as 67% of the middle 5th by the early 2000's, but has settled back down to around 62% of white incomes. In other words, there's been some improvement, but not great. In fact, it's gotten worse over the last decade.

The 2nd lowest 5th went from less than 55% of the 2nd lowest white incomes to almost 65% of the 2nd lowest white incomes by the early 2000's, but has fallen back to barely over 55%. In other words, there was some significant improvement among a group that needed it a lot, but that improvement has virtually disappeared during the last decade.

The lowest 5th of black incomes went from just under 60% of the lowest white incomes and has fallen to less than 50% of the lowest white incomes. Whatever we've been doing to reduce racial disparity in incomes has been a failure when it comes to the most poor (and especially over the last decade).

 

[russ_watters]

I don't get it.

... But that doesn't mean that 70% of time a person that is white is passed over for a person that is black (him/her on paper less qualified) is because of color differences alone.

Then that's not an AA issue. I specifically referred to AA policy: AA policy mandates that actual or implied quotas be filled, so people should hire "qualified" minorities instead of the "best qualified" candidates.

If you get 90% and a person applies to the same job with a 95%, he is better qualified. Then another person applies with a 100%, obviously better qualified. Then a person applies with a 100% and good softs, obviously qualified. Then another person applies with the 100% and even better marks, etc...

Riiiiight...? So what? If the person who was 90% qualified got the job because he was black and the person who was 100% qualified was white, that's AA and that's discrimination.

Obviously accepting the less qualified person puts your company at risk, but there is more variation that goes into something than simply a 'qualified or not scenario'.

You're basically presuming that the blacks passed over were less qualified than the whites that applied.

Huh? I'm not sure you read my posts at all. I cited a court case where the only candidates who passed a test where white and hispanic, so the test results were voided because none of them were black. That's not a presumption, that's a fact: Blacks were not qualified but whites and hispanics were, so the whites and hispanics were denied promotions they had earned.

You've made a real mess of understanding my argument.

A person could make the same remark towards the number of whites that play hockey.

They do say it for baseball. That's the point. That's the double standard. It never gets said for a black majority sport.

 

[russ_watters]

Actually, you abandon the policies because they've improved things to the point you're satisfied (mission complete) or because they've provided no improvement at all (mission failure). You continue the policies because things are moving in the right direction, but you haven't gotten there yet.

As someone who cares about Constitutional principles, I would add a third reason for abandoning a policy...

 

[Mentalist]

I am in the midst of changing my opinion on this, so I have to write about it first to make sure my stance on it fits what I believe is more logical...

 

[Dembadon]

Huh?

1. AA does nothing to the qualifications of the pool of applicants, nor does it increase the pool. It only impacts the decision-making process for which applicant gets picked. People make their own decisions on whether or not to apply for jobs/college. Please quote such a policy, if you think I'm wrong about that.

It increases the pool by using outreach and recruitment programs in underrepresented areas, just one example. I never claimed it did anything regarding the qualifications of the applicants, nor did I claim people don't make their own decisions about applying for jobs/college. Giving a group access to positions that were previously inaccessible does not force them to apply for them. It also does not force anyone to select them for such positions. Quotas are gone.

I guess I'll link this again:

AFFIRMATIVE ACTION REQUIREMENTS

Each Government contractor with 50 or more employees and $50,000 or more in government contracts is required to develop a written affirmative action program (AAP) for each of its establishments.
A written affirmative action program helps the contractor identify and analyze potential problems in the participation and utilization of women and minorities in the contractor's workforce.
If there are problems, the contractor will specify in its AAP the specific procedures it will follow and the good faith efforts it will make to provide equal employment opportunity.
Expanded efforts in outreach, recruitment, training and other areas are some of the affirmative steps contractors can take to help members of the protected groups compete for jobs on equal footing with other applicants and employees.

http://www.dol.gov/ofccp/regs/compliance/fs11246.htm#.UO9V-G8708g

Outreach, recruitment, and training efforts increase the pool size by reaching out to underrepresented groups. Opportunity provisions are separate from the selection process. I've yet to find anything in the executive order or the AA requirements that specify selection procedures which are to be followed. The selection process is to be conducted without discrimination. Efforts to increase the pool from which candidates are selected are what's addressed by AA.

2. If there is 1 job opening and 2 people apply, 1 person gets the job and the other does not, right?! One is included and the other not. That's what most of the lawsuits are about!

They both were included in the pool. If discrimination were present, one would be unjustly excluded from the pool. For example, assume you're a company looking to fill a janitorial position. It's possible to exclude an entire segment of the population from even being able to be in the pool of applicants if you only provide applications in English. Since a janitorial position probably does not require someone to be completely fluent in English, you could increase the pool of applicants by providing applications in other languages. By providing applications in other languages, you do not exclude anyone.

I'm not going to read through the whole thing. You tell me how the program works either in your own words or with a key quote.

I'm requesting a bit of latitude here, since it would be difficult to present an entire AA program with a key quote. Here are the contents of the pages with corrective actions for problem areas shown by the company's data analysis. I do not see any discrimination present in the corrective actions.

From page 16:

Area of concern: Underutilization of minorities and women in Job Groups 1 and 4 where external hiring opportunities occurred. Concern regarding low minority and female applicant flow rate resulting from inadequate recruitment for both job groups.

Corrective action: No later than March 1, 2010, notify management and professional recruitment sources, in writing, of FCI’s interest in attracting qualified minorities and women to apply for job openings.

Area of concern: Underutilization of women in Job Group 8 entry-level blue-collar jobs. voncern regarding low female applicant flow rate resulting from inadequate recruitment.

Corrective action: No later than January 1, 2010, contact the local YWCA, local vocational school, and training centers to inform them of FCI’s interest in attracting qualified female applicants.

Area of concern: High termination rate for females in Job Group 8.

Corrective action: Immediately review exit interview survey of terminated females to confirm voluntary reason for leaving.

From page 17:

Action Oriented Programs
FCI has instituted action programs to eliminate identified problem areas and to help achieve specific affirmative ction goals. These programs include:

1. Conducting annual analyses of job descriptions to ensure they accurately reflect job functions;

2. Reviewing job descriptions by department and job title using job performance criteria;

3. Making job descriptions available to recruiting sources and available to all members of management involved in the recruiting, screening, selection and promotion processes;

4. Evaluating the total selection process to ensure freedom from bias through:
a. Reviewing job applications and other pre-employment forms to ensure information requested is job-related;
b. Evaluating selection methods that may have a disparate impact to ensure that they are job-related and consistent with business necessity;
c. Training personnel and management staff on proper interview techniques; and
d. Training in EEO for management and supervisory staff;

5. Using techniques to improve recruitment and increase the flow of minority and
female applicants. FCI presently undertakes the following actions:
a. Include the phrase "Equal Opportunity/Affirmative Action Employer" in all
printed employment advertisements;
b. Place help wanted advertisement, when appropriate, in local minority news
media and women's interest media;
c. Disseminate information on job opportunities to organizations representing minorities, women and employment development agencies when job opportunities occur;
d. Encourage all employees to refer qualified applicants;
e. Actively recruit at secondary schools, junior colleges, colleges and universities with predominantly minority or female enrollments;
f. Request employment agencies to refer qualified minorities and women;

6. Hiring a statistical consultant to help FCI perform a self-audit of its compensation practices; and

7. Ensuring that all employees are given equal opportunity for promotion. This is achieved by:
a. Posting promotional opportunities;
b. Offering counseling to assist employees in identifying promotional opportunities, training and educational programs to enhance promotions and opportunities for job rotation or transfer; and
c. Evaluating job requirements for promotion.

However, pages 11 and 12 are about statistics, which fits the previous discussion of the goals: making the fraction of certain minorities in your organization match the fraction in the general public. That's a quota.

A goal is not a quota. What you saw in the AAP were goals. Quotas are rigid and exclusionary; they imply, "This is what you must achieve, no matter what." Goals are flexible and inclusive; they imply, "This is what we think you can achieve if you try your best." Goals are simply program objectives translated into numbers. They provide a target to strive for and a vehicle for measuring progress.
http://hrweb.berkeley.edu/faq/1660

I don't count discrimination on the basis of court cases. Things like the Philadelphia policy I linked earlier exist and are not being challenged. Hundreds of companies and thousands of people have been discriminated against because of this quota system over the course of decades.

Then how are you defining "often" without numbers? If you don't like court cases, is there a study to support your position? Something that would lead you to believe that reverse discrimination due to AA occurs "often"? Also, to include cases that happened decades ago is hardly fair, since we're talking about AA's current requirements, which have changed.

Please link and quote if it is that clear-cut.

I already did, in my first post of the thread.

The constitution is a broad document describing our entire federal government. AA is one class of policies. The analogy would better be shown in the adopting then scrapping of the 18th Amendment: a single-issue item in the Constitution.

Fair enough.

Only if quantum mechanics were at the same state as AA: never having been shown to be anything but crackpot "bullcrap".

Hyperbole is unnecessary. The analogy served to point out the danger in the line of reasoning, not make any claims about the validity of either concept. It does not always follow that poor implementations are due to flawed concepts.

 

[Gokul43201]

I completely accept the noble goal of AA, but:
1. The US Constitution does not allow the logic of AA. The Constitution protects individual rights. Period.
...

I'm not sure the 'period' is justified. It seems to me like the Constitution goes to great lengths to protect individual freedoms but apparently stops short when it may be argued that a significant societal harm is done by going further. For instance, there are limits on the freedom of speech (you can't yell 'fire' in a crowded theater), and the right to bear arms (you can own a handgun, but not a hand grenade). I, personally, am not sure exactly where in the Constitution these limitations are permitted, but I think it'll be easier to convince me that AA is constitutionally sound than to convince me that it's good.

 

[russ_watters]

That example fails from both sides, Gokul:

1. The individual yelling "fire" is an individual and you're examining the limit of his individual right to free speech. Looking at the limiting factor of the right does not change the fact that the right itself is exercised and protected (or not) on the individual level. If you want to examine if a group right to free speech exists, try the Citizens United ruling.

2. The crowded theater is made up of individuals, each with an individual right to life that trumps the other individual's right to free speech. Yelling "fire" in a crowded theater doesn't need to result in multiple deaths in order to fail, it only needs to cause (or just risk) one. I'm not saying that there aren't examples of individual rights that are limited due to potential for societal harm, just that if there are, this isn't one of them.

 

[Gokul43201]

That example fails from both sides, Gokul:

I concede that 'fire' was a poor example (but not firearms). Maybe Schenck would have been a better example. Or eminent domain powers.

I'm not saying that there aren't examples of individual rights that are limited due to potential for societal harm...

Will you go a step further and agree that there are?