All Episodes
Previous Next
Jan. 9, 2022 - Radio Renaissance - Jared Taylor
51:04
Jared Taylor Speaks at Temple University Law School (1993)
| Copy link to current segment

Time Text
Well, I appreciate you all coming today.
I notice there's a lot of room in front.
Is this the way you all choose your seats in law school here?
Everybody sits in the back.
Okay. Well, I certainly appreciate Mr. Herbert arranging this talk.
It's the first time I've ever been to Temple University.
I'm very pleased to be speaking to you all.
In terms of scheduling, it wasn't exactly ideal for me.
I arrived in Philadelphia at about midnight last night, straight from Japan.
And I don't know how familiar any of you are with the phenomenon of jet lag, but if my eyes glaze over and I start mumbling about seat numbers and flight delays, that's fine.
Now, I'd like to talk about, primarily, about affirmative action law, how civil rights became affirmative action.
And in a way, it's something about Alice in Wonderland's story, about how laws that were passed for a very clear purpose Have been essentially stood on their heads and are now used to require the very thing that they were passed to eliminate and forbid.
Now, I realize there's a certain temerity in myself as a non-lawyer speaking to lawyers-to-be and perhaps law professionals here, and I'm sure that if I have any errors in fact, they'll be corrected.
First of all, though, I'd like to talk a little bit about my book.
The question of affirmative action and affirmative action law is just a small part of it.
The main message of the book, and this is something that Professor Ernstine was referring to in that dust jacket blurb that Mr. Herbert just read, the main message is that increasingly in the United States, it's a mistake to explain the shortcomings and failures of blacks and other non-whites in this country in terms of white racism.
This is not something that everyone explicitly says, but it's the implicit underlying assumption in practically every public statement about race in this country today, namely that white racism is perhaps the exclusive and sufficient reason why blacks are more likely to be poor in this country or in jail,
etc. I think that that's an increasingly dangerous misdiagnosis, and that this search for white racism, which...
becomes more and more hysterical and futile all the time is causes, has begun to cause more trouble than to solve problems.
And just as an example of what I'm talking about, I think you can show in many convincing ways the extent to which racism has receded dramatically in all areas of our society.
And it's increasingly difficult to use it as an explanation for what's happening in America today.
Just as one example, if I were to ask you one question about a baby born in Philadelphia today that would give me the best possible indication of what that baby's chances of success in life would be,
I'd just ask you one question.
Is this child a legitimate child or an illegitimate child?
Does it have married parents?
The fact of the matter is that illegitimacy is the single best predictor of such things as
Infant mortality, well, that's a spectacular example of failure in life to come.
But such things as dropping out of school, being a criminal, going on welfare, being poor.
Illegitimacy is the single best predictor.
And the tragic fact of the matter is that in the United States today, nearly 70% of all black children are illegitimate.
The number of whites is high enough.
It's 20%.
But it's increasingly difficult to argue that such things as an illegitimacy rate of 70%.
Can be directly attributed to white racism.
Now, the book goes on to talk about some of the double standards that apply increasingly in discussions about race, some of the rather astonishing and sometimes shocking facts of interracial crime, the change of civil rights laws and affirmative action law,
which is what I'll be talking about today, welfare, underclass, this sort of thing.
Those are some of the general subjects of the book, but since this is a...
I want to talk about affirmative action law.
First of all, I think it's important to draw a distinction between affirmative action and equal employment opportunity.
Equal employment opportunity, understood literally, means precisely that.
That is to say, everyone who wants a job or is applying to a university is treated equally, without regard to race.
Affirmative action, on the other hand, is the opposite of that.
It's taking race or some other factor, generally sex or national origin, into consideration making these decisions.
So it's, in fact, the opposite of equal employment opportunity.
Often the two terms are used if they were interchangeable, whereas they are the opposites.
The Civil Rights Act of 1964 is where, at least in the modern period, where all of this begins.
That act was passed.
In very clear language, Title VII of the law, which is the part of the law that deals with employment, is exceedingly clear.
It says race is not to be a consideration in employment, promotion, any of these matters.
The whole idea was to just kick race out as a relevant category in the professional lives of Americans.
Now, at the time that that law was being discussed, there were a number of congressmen who were concerned That an anti-discrimination law of this kind could be used to promote racial quotas, preferential hiring patterns, hiring patterns to correct imbalances,
that sort of thing.
Well, Hubert Humphrey, who was one of the main promoters of this law, was adamant that the law could not possibly be used in this fashion.
He said there is no way that this law could be used to do anything but eliminate race as a consideration in hiring.
Certainly not to require it or encourage it.
And in fact, he promised to eat the paper that the law was printed on if the law were ever used to require or to permit racial hiring practices that would correct imbalances of that kind.
And in fact, Section 703J of Title VII was written into the law for precisely this purpose.
And it says, nothing contained in this title shall be interpreted to require any employer to grant preferential treatment to any individual or to any group because of race, color, religion, sex, or national origin.
That was put in because a number of congressmen were worried that an anti-discrimination law could in fact be turned on its head and be made into a discrimination law.
Now, as a consequence, Of the passage of the Civil Rights Act of 1964, the obvious racially discriminatory employment practices that have been common, certainly in some parts of the United States, quickly went away.
All white unions, for example, or racial segregation laws in factories.
There were still places in the South, particularly in North Carolina, for example, there was this particular law that said that in the textile industry...
Whites and blacks could not work in the same facilities.
That was a way of simply excluding blacks from employment in that industry.
All of these practices very quickly went away, as did segregation in public accommodation, restaurants, hotels, which in fact was considered to be a much more difficult thing to enforce.
In any case, all of those things quickly went away.
And in fact, the thinking behind the Civil Rights Act of 1964 was in fact identical to that behind The Supreme Court decision of Brown for support of education in 1954.
At that time Thurgood Marshall argued very persuasively that the Constitution is colorblind and color should have nothing whatsoever to do with the way the United States treats its citizens and that therefore separate but equal was inherently unequal.
Now it's very interesting how quickly this notion of eliminating discrimination It was changed to reintroducing discrimination, but in the opposite direction.
The first use of the phrase affirmative action was in an executive order of Lyndon Johnson's.
Now, he did not use it, however, in the meaning that's common today.
He used it still in equal employment opportunity.
He said, in this executive order, he said, employers...
We'll be absolutely certain to eliminate race as a consideration and that they will take affirmative action in order to eliminate race as a consideration.
So we were still talking about civil rights in the ordinary sense.
The first time that the law was used to provide preferential treatment for non-whites was something called the Philadelphia Plan, developed right here in this town.
That was in 1969.
That was only five years after the passage of the law.
And it's worth pointing out that contrary to popular belief, affirmative action entered the lexicon as racial preferences, not under Lyndon Johnson, as is commonly thought, but under Richard Nixon.
The idea of this Philadelphia plan was that government contractors were to make special efforts to make sure that their employees, that their workforces, reflected racial balance in the surrounding population.
That was the first instance of government requiring contractors to make special efforts to hire blacks so as to balance the workforce.
Now, actually more important than the Philadelphia Plan was a Supreme Court decision in 1971, two years later, called Briggs v.
Duke Power.
It's really quite a fascinating...
Court case, and one that says a great deal about the kinds of mental gymnastics that Americans were at that time, and continue to do, going through.
Duke Power was a utility company in North Carolina, if I'm not mistaken, and up until 1964, its management training program had been racially segregated.
Only whites were admitted to the management training program.
Now, this program had two requirements for people who wanted to join it.
They had to be high school graduates, and they had to score at least a certain level on a standardized intelligence test.
Well, after the Civil Rights Act was passed in 1964, Duke Power, in accordance with the law, integrated its management training program.
It opened it up to people of all races.
Their requirement, high school graduation and a certain score on the test.
They thought they had done exactly what the law required.
Well, it turns out that they had not.
Because although these requirements, high school diploma and test score, had been in place ever since they'd had the program, it was found that black applicants were less likely to have a high school education.
And less likely to score as high on this test.
The Supreme Court thereupon decided that there need not be any intent to discriminate.
It recognized perfectly well that Duke Power did not have these requirements for the management training program in order to exclude blacks.
They'd always had these requirements.
What they decided was that intent to discriminate Need not matter so long as you show what was called disparate impact.
Disparate impact then becomes the key to understanding affirmative action.
Once again, what this means is you do not have to intend to discriminate.
If you have an employment standard or a job requirement that has a disparate impact, that is to say, one that blacks or Hispanics or Asians or any non-white group is less likely to meet for whatever reason.
than whites are, then that's disparate impact and it's potentially illegal.
Now, obviously, in certain circumstances, you have to have job requirements that have a disparate impact.
If you're hiring electricians, electricians have to understand electricity.
And if it's in fact the case that, proportionately speaking, more whites understand electricity in this sense than blacks, you have a disparate impact.
On the other hand, you can't hire electricians unless they meet certain standards.
So, what evolved was a system whereby, yes, you could have disparate impact in job qualifications, but only if you could demonstrate the satisfaction of the EEOC that these requirements were absolutely essential to doing the job.
Now, that is a way out for employers, of course, but when you think about it, it's an entirely unsatisfactory way out.
What it says is, Because of this possibility of disparate impact, you have to reduce your job qualifications and standards to the bare minimum.
Once you've reduced them to the bare minimum, then you can exclude people, white, black, or any race who do not meet them.
But you cannot exclude people on the basis of higher requirements than that.
So what that means is...
An American employer cannot simply set out to have the highest quality workforce possible regardless of race.
That runs afoul of this disparate impact notion.
If, for example, you decide that you would like all your truck drivers to have a college education, well, that would be immediately struck down in the courts because that would have a disparate impact on blacks because blacks are less likely to have a college education.
This whole notion of disparate impact had a devastating effect on general aptitude tests.
Up until 1971, a lot of companies had general aptitude tests they gave to all their employers.
Now, in these, blacks were less likely to score as high as whites, so they had a disparate impact.
And they could not be defended in terms of applying to strict requirements for a particular job.
A general employment test, a general qualifications test, could not be used to hire people for a particular job.
So these tests all had to be thrown out.
One of the most interesting in that respect was a standardized test called the General Aptitude Test Battery, GATB.
This was established by the government.
Well, ten years later,
the Department of Commerce, which administered this test, came up with a solomonic solution to this problem.
They said it was called race norming.
And what it worked out to was this.
Black scores, Hispanic scores, Asian scores, and white scores on this test were compared only with the scores of people of the same race and adjusted accordingly.
As a consequence, by means of race norming, with a raw score of 300, a black would be ranked in the 87th percentile, a Hispanic in the 74th percentile, Whites and Asians together at the 47th percentile.
That's a pretty substantial difference.
So between blacks and Asians, for example, you're talking about 40 percentile difference.
What this was doing was saying, in effect, that a 300 score meant that a black was in the 87th percentile among black test takers, and that an Asian or a white with the same 300 score was in the 47th percentile among whites and Asians.
Now, race norming was kept secret.
The Department of Commerce understood perfectly well that most Americans would think that this was unfair.
So race norm scores were given out to employers, to job applicants, almost always without their knowing about it.
Race norming, on the other hand, became known several years ago, attracted a lot of attention, all of it unfavorable, and is now rather...
In disfavor.
But if you think about it, what race norming did, it essentially was a backdoor to quotas because it said, okay, here are your test takers and you're going to compare people of each race only with people of the same race.
And so if you were to hire your employees based on GATB standards, you would in fact have a workforce that perfectly matched the racial numbers of society.
And Eleanor Holmes Norton, who was Jimmy Carter's appointee to run the EOC, she in effect said as much.
She told employers, if you have a racially balanced workforce, we won't bother you.
If you have a workforce that is not racially balanced, we will assume that you're using disparate impact job standards, and you will have to go to court and defend yourself.
Now, there's an interesting aspect to this.
If you have a workforce that is racially unbalanced, you can be hauled into court and you are presumed guilty until you demonstrate that the job standard that you use, which had a disparate impact,
was something that was required for the job.
We're not even talking here about intentional discrimination.
We're not talking about employers who say, no Irish need apply, or blacks in the back of the bus.
We're not talking about that at all.
We're talking about a byproduct of a job standard.
And if one of the byproducts of a job standard is that you have a racially unbalanced workforce, you must demonstrate you are presumed guilty unless you demonstrate that that job standard is essential to getting the job done.
Now, the fact of the matter is, and it's a sad and tragic fact, but in many respects, if you have, in order to get, A workforce that reflects the racial composition of the United States, or your town, or your neighborhood, or whatever the standard area is,
you simply have to have different standards for different races.
And that's what the GATB was all about.
Having different standards for different races in order to have a workforce that matched the surrounding population.
Now, it became clear to a lot of people, not just white people, but black people as well, That this process involved different standards for different races, and in fact was an obvious and complete violation of the Civil Rights Act of 1964.
And so in the Supreme Court case of Weber v.
Kaiser Aluminum, it went up to the Supreme Court, and this white fellow, Weber, who had been discriminated against for a job training program at Kaiser Aluminum, he sued on discrimination grounds.
And interestingly enough, The Supreme Court in its decision at that time ruled that this kind of discriminatory treatment was legal based on the very Section 703J that I just read to you from Title VII that was designed to rule it out.
How could they manage to do that?
It's because Section 703J says the law does not require preferential hiring.
And the justices said, since it doesn't require it, it doesn't forbid it.
Therefore, preferential hiring practices are legal.
Now, the notion of disparate impact has trickled into areas where you might never have expected it to appear.
As an example, traditionally, police forces and fire departments have not considered for employment people who have been in the armed forces but have been discharged dishonorably.
That's just been a standard operating procedure.
In police and fire departments.
As it turns out, blacks and Hispanics are more likely to be dishonorably discharged than whites.
Therefore, to have this as a job requirement, an honorable discharge as a job requirement, at least when you're talking about veterans, has a disparate impact and it cannot be used as a job qualification.
In other words, this piece of information that employers used to go by is now considered illegal and they must not consider it.
Whether or not an employee has been dishonorably discharged.
The same has to do with an employer who is considering employees for a job that requires handling of money, financial responsibility.
It used to be a common practice to examine an employee's credit rating.
Once again, the fact of the matter is that blacks are less likely to have good credit ratings than whites.
So an employer...
Who wishes to consider an employee for a job requiring money handling, financial responsibility, must not consider credit rating.
To consider it is discriminatory because it has a disparate impact.
Once again, we're not talking about any attempt deliberately to keep people of any particular race out of a job.
We're talking about an employer who wants information about a potential employee so he can make a decision.
Well, that particular piece of information is no longer legal for him to know.
Now, I don't know how many of you all followed the development and the passage of the Civil Rights Act of 1991.
That's the most recent act that is relevant to all of these questions.
What that act did was codify into law this whole notion of disparate impact.
Up until that time, disparate impact had been something that the courts had imposed on American society.
It had never been written into law.
The Act of 1991 does that.
It codifies the notion of disparate impact, and it does several other things as well.
One of the things that it does is bans quotas.
It says there will be no hiring quotas.
Well, that's an interesting approach.
Unfortunately, it's a little bit like saying to passing a law and telling a power company.
You will put your lines underground, but you can't dig holes.
Or at least you're not required to dig holes.
Because once you talk about disparate impact, you're back to Eleanor Holmes Norton telling American employers, if you have a racial mismatch among your employees, you are presumed to be discriminated.
At the same time, something else that the Act of 1991 did was to ban race warming.
Race norming had gotten such bad press and turned out to be so unpopular that Congress piously banned race norming.
Interestingly enough, American employers fought that clause.
They wanted race norming.
Now, why do you think they wanted race norming?
It's because employers like standardized tests.
They're very useful.
And it's worth noting that standardized tests were introduced as an idea of getting rid of subjective decision-making, getting rid of preferential treatment, trying to make hiring as standardized and as fair as possible.
Employers liked that, employees liked that.
Employers who wanted race-normed tests wanted that because they understood perfectly well that they were going to have to have a racially balanced workforce.
That's all there was to it.
They knew they were going to have to have that.
And in fact, a race-normed test.
But accurate and predictive test is the most fair and best and most effective way to have that.
Another interesting thing about this Act of 91, the Senate completely exempted itself from it, as it always does when it's a question of, I'm sorry, the House completely exempted itself from it, as the House always does with respect to equal employment opportunity laws,
discrimination laws, occupational safety and health laws.
Congress always exempts itself.
On the basis that laws of this kind interfere with their ability to hire the people they want?
Well, gosh, maybe it does.
On the basis that laws of this kind might provoke frivolous lawsuits?
Well, gosh, maybe it would.
So Congress, Congress, in its usual way, exempted itself.
The Senate did not exempt itself.
It went back and forth about all this.
But senators, if they're accused of hiring practices that have a disparate impact, they don't go before a civil court the way an employer does.
They go before a Senate ethics panel, and as you all know, Senate ethics panels are notoriously lax and lenient in the way they treat their brother and sister senators.
So, and after all, let's examine this from a senator's point of view.
What would be disparate impact in hiring standards?
A senator that wants the most capable and competent legislative assistant, he might want a PhD.
He might want somebody with 10 years of experience.
He might want somebody with an IQ of 160.
Now, all these things might be useful, but are they the bare minimum qualifications for legislative assistance?
Well, maybe they are.
Maybe they're not.
The Senate, of course, did not want to be bound into that kind of straitjacket, precisely the kind of straitjacket it was prepared to make the rest of the country wear.
Now, what this means, of course, is that if an American company Wants to have a racially balanced workforce and therefore be in compliance with the law or at least not be subject to prosecution.
It has to, in effect, discriminate against white people in most respects.
In certain job categories, it does not have to discriminate against white people.
Take the National Basketball Association.
The best basketball players play basketball.
If basketball operated the same way that other employers had to operate, there could conceivably be a requirement that there always be three white guys on the floor from every team all the time.
Well, nobody would say that that was a fair thing to do.
And yet, that, in a somewhat more subtle form, is what's required by these other laws.
And in fact...
Is that true?
How about you just say there were no enclosures?
Oh. What I said to you is that quotas are not required by the Act of 1991.
Congress very piously said, no more quotas, guys.
But they wrote into law all of the requirements of whispered impact, all of the requirements that had led Eleanor Holmes Norton to save employers.
If you do not have a racially balanced workforce, we can very well sue you.
Now, it's interesting to note there was a conversation between Justice Thurgood Marshall and Justice William Douglas that William Douglas writes about in his memoirs.
William Douglas was opposed to affirmative action.
He said, this is racial discrimination.
Well, when he explained this to Thurgood Marshall, Justice Marshall replied, you guys have been discriminating for years.
Now it's our turn.
It was perfectly clear to Thurgood Marshall what was going on.
And occasionally...
It's clear, just reading the documents that the U.S. government prints, what's going on.
I don't suppose any of you are familiar with IRS Publication 557.
IRS Publication 557.
I hope none of you ever has to read this.
It's another one of these long, convoluted IRS documents.
But it explains how a school gets tax-exempt status.
An educational institution, what you have to do in order to get tax-exempt status.
And there are several pages in this publication explaining that you must not discriminate on the basis of race.
In fact, the publication 557 tells you that if you're running a school, you have to advertise in local newspapers that you do not discriminate.
You have to take out ads in the radio saying you do not discriminate.
If you take out newspaper ads, they have to be of a certain point size and a type.
They have to say certain things.
It is extremely clear.
That you had better not discriminate on the basis of race.
However, there's one little interesting paragraph in this publication, and I'll read it to you.
After having been told over and over and over again that racial discrimination is wrong, and if you do discriminate by race, your tax exemption will be lifted, it then goes on to say this.
A policy of a school that favors racial minority groups with respect to admissions, facilities, and programs of financial assistance does not constitute discrimination on the basis of race.
One, the purpose and effect of this policy is to promote, establish, and maintain the school's non-discrimination policy.
What?
Let me read that to you again, in case you didn't catch that the first time around.
A policy of a school that favors racial minority groups with respect to admissions, facilities, and programs does not constitute discrimination on the basis of race.
when the purpose
Is to promote and establish non-discrimination.
Well, if you can understand what that means in real English, you're a better legal scholar than I am.
In effect, let's have questions at the end.
You can sharpen your knives the whole time I'm talking.
And then let's have a question and answer after.
So, the whole process of affirmative action has resulted...
In what's in effect a quite astonishing situation when you think about it.
In the United States today, immigrants to the United States, so long as they are non-white, they are eligible for affirmative action as soon as they set foot in the country.
And I'm not sure quite what sort of explanation we could come up with for something like that, but that's the way it works.
In fact, the Texas Highway Patrol is under such pressure...
to hire Hispanics to be highway patrol.
It advertises its openings in Mexico.
It tries to recruit non-U.S.
citizens so that it can fulfill a quota for Hispanics.
And, as I'm sure you're all aware, affirmative action in terms of academic admissions processes works in the same way, such that today the average black scores on the medical college admissions test, these are the ones that get you into medical school.
The average for blacks who are admitted is lower than the average of whites who are rejected.
Now, I believe that all of this spells considerable danger ahead.
Most Americans, black and white, think that discrimination on the basis of race is wrong.
Ninety percent of white people, not surprisingly, will tell a pollster that they think race should not be an issue when you're being hired or admitted to college.
Interestingly enough, Fifty to sixty percent of black people will tell you race should not be an issue.
Most Americans are fair-minded enough to think that if racial discrimination against blacks in the past was wrong, racial discrimination against whites in the present is likewise wrong.
Therefore, I think that if I wanted to fill the ranks of the Ku Klux Klan as rapidly as possible, I would probably invent affirmative action.
Affirmative action which, let's face it, Is discrimination against whites gives whites a legitimate grievance, not just against non-whites, but against the government that requires affirmative action.
And I think that, after all, the people who are paying the price for affirmative action today, they are young people trying to get into college, trying to get their first job, trying to get their first promotion.
The people who pay the price for affirmative action are not Supreme Court justices.
They're not newspaper editorialists who are already well-established in their careers.
They're young people who've had no hand in forming our society as it is today, but they are being made to pay the price for ostensible crimes committed by people of the same race in the past.
Therefore, I think that all of this is related to the title of my book, Paved with Good Intentions.
As you all know, that's from William Blake's line.
The road to hell is paved with good intentions.
Well, I think that the people who passed these laws, the Supreme Court justices, had the best of intentions.
But I think that they have done things that are only pouring oil on the fire and that will continue to make race relations worse rather than better.
Because, after all, the whole idea of the civil rights laws was to exclude race as a category.
But affirmative action makes race central as a category.
Well, thanks very much, and I'd be happy to answer any questions.
Oh my gosh, where do we get it?
Yes, sir.
You in the back.
You started out by the premise that racism has receded.
I'd like to know what you base your thesis on, or your premise, facts, figures, please, and from whose perspective?
Does that have another question?
Okay. On the first question, has racism receded in the United States?
If you are...
Oh, certainly.
If you are to compare the relative earnings of blacks and whites with the same educational qualifications, and you track them over time, you'll find that in the 1930s, for example, blacks and whites with similar educations got vastly disparate salary.
In the case of women, parity was achieved...
Back in the early 1960s, this is a relatively well-known, a relatively well-kept secret, and in fact, Thomas Sowell makes quite a point of this, that this is something that people who insist on racial discrimination simply don't want to talk about because it violates their thesis.
In the case of men, blacks and whites, with the same educational qualifications, they got to essential pay parity in the mid to late 70s.
And in fact, there are certain qualifications that you might have, such as PhD in a certain subject, in which a black person who is looking for his first job is likely to get a higher salary than a white person looking for his first job because universities and other organizations are under considerable pressure to meet affirmative action codes.
The same is true with respect to people at the other end of the social scale.
When I first started doing the research for this book, I expected to satisfy considerable evidence of racial discrimination in the criminal justice system.
Everyone assumes that the criminal justice system is inveterably racist and full of bias against non-whites.
Well, certainly it was the past.
If you were to do a comparison between the 1930s or 40s or 50s and today, you would find that blacks and whites coming up for sentencing for the same crimes And in fact,
Joan Petersilia, who is the head of the American Association of Criminologists, has, in fact, at one time, she thought that that was not the case.
And she has gone back and done her research and has found that, in fact, If you take all of the circumstances into consideration and make them the same, same crime, same criminal record, same circumstances, that blacks,
whites, Hispanics, Asians essentially get the same sentencing treatment.
And in fact, if you want to look for a difference in treatment, you'll find that black judges are more likely to be harder on black defendants than white judges are.
Well, perhaps you should read one called The Myth of a Racial Criminal Justice System by William Wilbur.
Yes, sir.
I think if you're quoting things, you should be fair in your quotes.
I think that you should be more broader than just coming from one perspective.
If you're going to quote these statistics and make these assertions, then you should have it from both sides.
A black point of view is we're going to specifically talk about blacks as if we're the only minorities in this society and make their pretense that it's a black-white issue.
And I think you should read books based on black marters and books based on white marters.
That's a fair recognition.
The fact is, the facts exist independently of whoever is examining them.
black criminologists who look into the same phenomenon have found the same thing I don't think I'm on research paper and I can give you my sights today if you'd like to believe as we know it's low, it's fast to know if you may say whatever you want to say I
beg your question as we know it's low, it's fast to know if you may say whatever you want to say and numbers you can say what they want to say, so that is
Well, so what you're in effect saying is that research, statistics, facts make no difference to how you're going to view the world.
That suggests to me something of a closed mind.
After all, all of us, all of us, excuse me, all of us ideally should base our view of the world on the facts as best we are able to understand them.
And having examined the facts as best we're able to understand them, then we should draw our conclusions.
I based my judgment on the way I was treated through a lifetime.
And I really can't understand where you're coming from.
I mean, what you're saying is not totally true.
I mean, if I were to buy from you, what you're saying is like, to me, it doesn't make any sense, because I've been discriminating against all my life.
And you're going to tell me that this is because, and I have the same business as part of everybody in this class, but I bet you I'll be discriminating against before anybody else.
You're going to tell me all these statistics, I'll have a better opportunity to get to
I would never say that there's no such thing as racial discrimination in the United States.
There always has been, and I suspect there always will be.
There is no multiracial nation on the face of the earth in which all the races live side by side in frictionless bliss.
That's never going to happen.
However, I think to maintain, as some black scholars do, that racial discrimination is just as bad, if not worse, than any other time in the history of the United States.
It's simply wrong.
And none of the facts bear this out.
Can you come over here?
Certainly. I have to say, first of all, I came here with a relatively open mind based on the title of the lecture today, which I thought was kind of provocative and I wanted to be here.
But after listening for about the first 15 or 20 minutes, I realized it was just basically the same old story, the same old news, and it wasn't anything I hadn't heard before.
It's the same old story of using statistics and studies and graphs and charts to show the superiority of one race over another.
And I find, by using that thesis, I find you to be a very sad, dangerous man.
And you're dangerous to the point that you put, or you reinforce the ideas in these young white boys and fellow societies that somehow the reason they didn't get into this college, get into this law school, and get this job is because some poor black If
I am not to base my views on statistics, on studies, on charts, on the best facts available to me...
On what am I to base my views?
I just want to ask people here to be courteous to everybody.
I haven't been involved with civil rights for the last several years and I faced discrimination myself.
However, I think things are going to be just making things worse.
Excuse me.
I really hoped that this would be a provocative discussion here.
May I speak, please?
Yeah, go ahead.
I hope it would be provocative, and I hope that there would be an exchange of ideas here, and we are having it.
But I feel that we are now, some people at least in the audience, we're moving into the point of, if not disrupting, then resulting to ad hominem attacks.
He's trying his best.
To give a view, and if anybody wishes to take issue with it, that's fine, but let us not take issue with it on an ad hominem basis.
But you brought him here.
Now you have to deal with the consequences.
Yes, ma'am.
You brought him here.
You advertised.
Yes, ma'am.
Let's have a question.
All right.
Yes, ma'am.
Okay. I understand what you're saying, but--and I agree with the Civil Rights Act, but the problem is there's not a level playing field.
And I think that's what affirmative action is trying to address.
And if you think that that is the inappropriate way to address it, do you have any other
You see, affirmative action is a deliberate unleveling of the playing field.
If we are in favor of removing discrimination, the best way to remove discrimination is to find it and eliminate it.
Affirmative action...
Affirmative action.
Take, for example, if you want to be an FBI agent, if you apply to the FBI, you get automatic points added to your score if you're black or Hispanic.
That is not leveling the playing field.
That is slanting the playing field in the direction you wish the playing field would be slanted in.
Likewise, if, for example, at the University of California at Berkeley, as the Chancellor once explained, if blacks and Hispanics were admitted...
Under exactly the same criteria as everyone else at Berkeley, there would only be 2% of the student body.
Blacks and Hispanics are 17 to 18% of the student body for one reason only, because Berkeley has different admission requirements for blacks and Hispanics as for whites and Asians.
Now, that is not leveling the playing field.
To level the playing field is to treat all people as equally as possible.
How would you do it?
How would I do it?
I suggest treating people without regard to rights.
And that is exactly...
The playing field is, to a large degree, if the playing field...
Excuse me, would you like an answer to your question?
The playing field...
is something that exists independently of all of us.
The playing field is there.
There are certain requirements for getting into this law school, and in my view, and in fact in the view of the majority of Americans, those requirements should be the same for people of all races.
Now, the question of how do you make it more likely for people of all races to meet those requirements, that's a different question that has to do with education, that has to do with how you are treated.
When you're a child.
But how would you do it?
We know all of that.
How would you do it?
You wrote this book based on facts and statistics.
And the reason why this has all happened, as we know, is because of the fact that injustices occurred in the past.
We know all of that history.
But there's never been anyone to say, everyone's attacking affirmative action, but have you come up with a solution?
How would you level the playing field?
Since you have not educated non-whites equally since we've been over here or anyone else, how would you correct it?
How would you do it?
I think that all of these things are largely and properly the responsibility of the citizens of the United States, much more so than they are the responsibility of the government of the United States.
And to get back...
Excuse me, look, look.
May I answer your question?
In fact, in fact...
As I said earlier, as I said earlier, one of the best predictors of whether or not a child is going to fail in society is whether or not he's illegitimate.
And I think that it is a mistake to assume that somehow the fact that 70% of black children are illegitimate is somehow based on...
It has nothing to do with education.
Excuse me, some people who are trying...
I understand you're trying to answer a question.
And I've been trying to be polite and raising my hand, and I haven't even been recognized.
So I think the clear answer is that you don't have that answer.
I don't know if anyone in this country actually has that answer.
And if you did, you'd probably be writing a whole lot of other books.
But I want to go to some of the specific things that you said while you were doing your presentation, or things that you did not say.
For example, in the desperate impact cases, what you did not say is that the burden of proof always, or the burden of persuasion...
Always remains with the individual who is alleging that the particular test that is being used by the employer has a different impact.
Let me just get in on video response.
There's a couple things.
They are related.
The second thing is you talked about how the employers have to respond by saying that, first of all, it creates an inference.
I don't know it creates a presumption.
An inference meaning that a jury could find one way or the other that an individual has discriminated.
The second thing, the third thing, is that you mentioned standardized tests and how old.
We all like standardized tests for whatever reason.
Well, what the act actually requires is that it be job-related.
I'm not sure that it requires that it be essential to the actual job.
And the final thing I wanted to get out was that you mentioned a conversation that Thurgood Marshall had with Justice Douglas, and you stated that he made the comment that Well, you've been discriminating for so long, now we can as well.
I think what he probably meant by that statement, I doubt he actually said that directly, but what he probably meant by that statement is what is happening is it has to be a very unrealistic point of view for you as a white man to assume that I, as a black man, can rise to a level of equality with you when you have been subordinating me and oppressing me for over 200 years since the inception of the Constitution.
I'll tell you only how that conversation is reported in Justice Douglas' memoir.
And I can't go into Justice Marshall's head and explain why he said what he said.
First of all, as far as the burden of proof in disparate impact cases, what you said is correct for a brief period of time.
There was a Supreme Court decision, there was a series of Supreme Court decisions, one of which was the Crossan decision, the...
Well, they all came down in about 1990, in which the Supreme Court did reverse that notion and say that it was up to the plaintiff to prove that the job standard or test was discriminatory.
That has now been reversed by the new Act of 1991.
So, in fact, what you say was correct for a period of about a year and a half.
The new law then placed the burden of proof back on the employer to say that, okay, You have a job standard as a consequence of this job standard.
You have more whites in these jobs than blacks, and you have to defend that job standard.
And the presumption is, unless you can justify that job standard, you are guilty.
You're right to say that there has been a certain amount of fiddling with the language.
Does the job standard have to be essential to job performance?
Does it have to be related to job performance?
We've gone back and forth on this language, and as I recall right now, it has to do with...
It's some kind of mixed formula of being related to and associated with capabilities.
The language, of course, is going to have to be worked out by the courts as to what this genuinely means.
Yes, sir?
Excuse me, I have to interrupt right here.
I was just told that there is going to be a class coming here in a couple minutes, and so we can just take one more question.
I do want to say something I forgot to say before.
And that is, anybody, we have a few copies of the book.
Anybody who's interested can talk outside afterwards and can buy a copy of the book.
I just want to say I'm very glad he came, and speaking not only from my perspective, I think that it's not good for race relations if you enforce what amount to racial reparations, and that is also called affirmative action.
That's not going to help anything.
Some of this stuff's uncomfortable to talk about and hear about, and some people might even understand or are emotional about it, as am I, but...
I think that racial reparations and affirmative action are really the same thing.
The Constitution says...
▲
Export Selection