Archive for May, 2011

A Limited Defense of Affirmative Action

May 29, 2011

I am a beneficiary of affirmative action. These days, so they say, I should be ashamed to admit it. It implies, after all, that I was not otherwise qualified for some benefit I obtained only because of being some kind of “minority.”

I have actually benefited from affirmative action on two different counts–as a woman, and as a Hispanic. Every now and then that gives me a slight edge on the competition. That doesn’t bother me particularly. I’ve been discriminated against as a woman more times than I can remember (or, probably, than I have ever known) beginning at least with my first permanent job, which I obtained only by giving the right answer to the employment agency’s question about what method of birth control I used. (For those too young to remember that era, the right answer was not “none of your damn business.” It was “the Pill.”) On another job, I was sexually harassed before there was even a word for it, much less a cause of action. So I figure any benefit I get from the double x chromosome is just a matter of restitution.

I have also been discriminated against, I’m pretty sure, for being Jewish. This, of course, gets me no affirmative action points, but that kind of makes up for the fact that I do get points for being a Hispanic (both my parents were born in Cuba, and my family is essentially bicultural) even though I have never been discriminated against for that fact. (As a matter of fact, since I am a natural blonde and speak English without an accent, nobody knows I am Hispanic unless I choose to tell them, and I normally do that only where I will get extra points for it. Which is generally in jobs where my ability to speak Spanish really is a plus.) And most recently, I have probably been discriminated against for my age, which is illegal, but for which I get no affirmative action points. So I will take those points where I can get them, without embarrassment and without feeling that my competence is in any way in question.

I went to a good college and made Dean’s List my last two years. I scored in the 98th percentile on my LSATs. But when I applied to law school, I was admitted to a school in which 45% of my class was female, in the mid-’70s, and rejected by another school which had a far lower percentage of female students in that year. The evidence seems clear; I was almost certainly admitted to the former because of my gender, and rejected by the latter for the same reason. My objective qualifications were equally irrelevant to both schools. Probably all those qualifications got me in the second school was a rejection further along in the process than some of my less-qualified sisters (and my totally-unqualified brothers.)

Realistically, of course, nobody ever challenged my academic competence, or that of any other woman I know who has been accepted into any academic program under an affirmative action program. Even the most neanderthal of male supremacists will grant that women on the average do better in school, except in mathematics and the hard sciences, than men. The reason women have historically been discriminated against in academic admissions is that we are not expected to be able to do much of anything useful with our knowledge and academic credentials after we get them.

So the affirmative action issue really only gets raised, where women are concerned, when one of us is promoted to a position of power, beyond the glass ceiling. Then the innuendoes fly–quotas, sleeping with the boss, the supervisor is a leg man, somebody’s sister, somebody’s daughter, somebody’s wife. Most of us, however, would still rather live with the humiliation of possibly having been promoted because of our gender than with the equally potent and much less remunerative humiliation of not having been promoted for the same reason.

Stephen L. Carter’s misgivings

Which is why I have trouble with people like Stephen L. Carter. His Reflections of an Affirmative Action Baby is a thoughtful and well-written book with a good sense of the complexities of inter-ethnic relations in the United States of the 1990s. But I have a few problems with its basic premises. Don’t expect the Establishment to make special standards for you, he tells young African Americans. It’s humiliating that we should think we need that. Meet their standards, beat their standards, and demand to be accepted on their terms. For Blacks and Hispanics, who are popularly expected to be less competent in academic achievement, it may actually be a source of humiliation to be admitted to a respectable school under an affirmative action program because of their ethnicity. However, most of the “affirmative action babies” I know would say that it is no more humiliating than being rejected because of that same ethnicity, and pays a lot better.

Carter’s advice takes the Establishment’s claims of devotion to meritocratic standards at face value. Which gives a lot more credit than it deserves to an Establishment that has never really believed in those standards, and has espoused them only when doing so would serve the purpose of keeping a particular group of outsiders outside.

The reason Carter has not seen this hypocrisy is that he is looking at the experience of only one group of outsiders. If he were to consider that of three others–women, Asians, and Jews–whose ability to meet meritocratic standards has rarely been questioned by anybody, he would discover that the Establishment has never had any difficulty excluding them, or severely limiting their upward mobility, on some other grounds.

The merit system: now you see it, now you don’t

For instance, in the 1930s, Harvard Medical School discovered that, if academic qualifications were to be the only criteria for admission, its entire entering class would be Jewish. Indeed, they would have had to double the size of the entering class to get in more than few token gentiles. So they suddenly discovered that there was more to being a physician than “mere” academic excellence. Arbitrarily, they set a quota of 22% for Jewish applicants, a quota which remained in effect until the ’60s, when, like the Jewish quotas in many other educational institutions, it was replaced with a larger and slightly less transparent quota on students from large cities, especially New York City, under the rubric of “geographical distribution.” Those quotas still exist today in many schools.

The experience of women is in some ways even more blatant. When my classmates and I graduated from college in the early ’60s, we frequently looked for jobs before and between graduate school, in the public sector. We took the civil service exams, scored at or near the top, and were repeatedly beat out for the actual jobs by men who had scored a good deal lower, before using their veterans’ preference points.

When I was at college, in the late ’50s and early ’60s, it was a truism, repeated to us regularly by faculty and admissions honchos, that men scored higher than women on the math section of the SAT, but women scored higher than men on the verbal section. It didn’t, of course, get us much. There were fewer places available for women at good colleges (or any other colleges, actually) than for men, and less scholarship money available for us. So nobody thought much about it. But twenty years later, when the various controversies about the biases of the SAT arose, I was startled to hear everybody, on all sides of the dispute, saying that women scored lower than men on both sections of the SAT. Even the American Association of University Women, in its otherwise beautifully researched study of discrimination against women in education, could only conjecture about what happened, by the end of high school, to the clear lead in reading and verbal skills, that girls have over boys in elementary school. What had happened–a couple of very well-hidden and quickly forgotten news stories revealed–was that in the middle ’60s, ETS changed the verbal section of the SAT, substituting scientific essays for one or two of the fiction selections in the reading comprehension test. Female scores promptly dropped to their “proper” place–visibly below those of their male classmates–and have stayed there ever since.

Asians are the most recent victims of similar policies. Several West Coast schools, most notably the University of California at Berkeley, have experimented with ceilings on the number of Asian students within the last 10 years. A university, the administration proclaims, has the right to put “diversity” above “mere” academic excellence.

In short, the history of other groups of outsiders suggests strongly that if an entire generation of African American young people followed Carter’s advice to meet meritocratic standards and beat them, the Establishment would have no trouble finding some other pretext to exclude all but the most presentable tokens among them from the precincts and perquisites of power–either by changing those standards, or suddenly discovering the greater importance of some other factor.

That does not, of course, invalidate Carter’s advice. It does make one wish Carter were a little more careful about truth in advertising, however. I tend to prefer Malcolm X’s more honest approach, when he advised his followers to read anything they could get their hands on and get all the education they could, even if all it got them was the proud position of best-educated person in the unemployment line.

Was there ever a merit system?

Before the phrase “affirmative action” ever found its way into our vocabulary, the reality of affirmative action was already as American as apple pie. After all, what else is veterans’ preference, if not an affirmative action program for (in the post-World War II era in which it was born) men? What else is seniority, if not an affirmative action program for older workers? I have never known a veteran, or an experienced union man, who was in the least ashamed to have benefited by those affirmative action programs.

Nor should they be. Before the rise of the meritocratic mythology of the ’70s, any American old enough to have held a job at all knew that nobody gets a job solely by virtue of being the most qualified candidate for it. In an economy which has never even aspired to full employment, most available jobs have several well-qualified candidates on hand. Most employment discrimination does not involve hiring an unqualified person in preference to a qualified one, but rather choosing between more-or-less equally qualified candidates on the basis of factors unrelated to the job.

The Jewish Establishment’s position

Many established Jewish community organizations, like many other high-minded, principled opponents of affirmative action, really believe that they are espousing a pure meritocracy as against a system of arbitrary choice. To take that position, they have to presume that, before the 1969 Civil Rights act, all male Jews had the jobs they were entitled to, by reason of their meritocratic qualifications. They also have to presume that all Jews are male, white, anglo, and middle-class and have nothing whatever to gain from affirmative action. They have to, in fact, ignore the experience of considerably more than 53% of the Jewish community. They even have to advocate giving back to the same academic and professional Establishment that subjected Jewish males to explicit, exclusive quotas until the early ’60s, the power to do it again.

Two cheers for affirmative action

Most supporters of affirmative action see it as a lesser evil. But, unlike its opponents, they recognize the realistic alternative as a greater evil. Affirmative action is not a matter of substituting for a pure meritocracy a system of choices among qualified candidates according to standards unrelated to job or scholastic requirements. It is a substitution of one set of arbitrary choices for another.

The alternative to affirmative action in real life is the divinely-ordained and legally-protected right of the employer or supervisor to hire people who remind him [sic] of his best friend, or people who fit his stereotyped image of the “proper” telephone operator or waittress or whatever. We know that most people who get jobs get them for reasons only distantly related to their ability to perform. In fact, the most serious downside of affirmative action, so far as I can tell, is that it denies future generations a really useful index of professional excellence. When I meet a doctor, or a lawyer, or a CPA, who is female or non-white (or better still, both) and who got his or her professional credential before 1970, I know I am dealing with a superlatively qualified professional, because only the best women and non-whites were able to survive the discriminatory professional screening processes in those days. For professional women and non-whites with more recent qualifications, alas, I have to take my chances, just as I would with a white male of any age.

So we sincerely hope that the people into whose hands we put our lives, our fortunes, and our sacred honor are in fact qualified to do their jobs. But as a practical matter, we know that we are at least as much at risk from incompetents who were hired or promoted for being the boss’s brother, or being tall, or not being Hispanic, or having an officious-sounding British accent, as from those hired or promoted for being female, Black, or Hispanic–quite possibly more, since the latter are usually watched more closely. In fact, these days I am beginning to suspect that American-born doctors can no longer be presumed to be as competent as doctors with foreign accents, since the latter are subjected to much tougher screening standards.

Well, maybe two and a half

We may see ourselves as winners or losers, and we may attribute our situation to other people or to our own deserts. Human beings generally have never had any trouble taking credit for their own good fortune or blaming others for their misfortunes. More recently, “new age” thinking has led many of us to take the rap for our own misfortunes, often in truly preposterous ways (“How have I created this reality?” the cancer patient asks.) But it is difficult for any of us to admit that our good fortune may be the result of some totally unearned “break” from the outside world–being white, for instance, or male. That is the real threat of affirmative action–that it requires us to consider the possibility that (even if, as is likely, we aren’t as well off as we would like to be) we haven’t “earned” even the few goodies we have. For those of us raised in the Jewish tradition, which teaches us that the Land promised to us by the Holy One is ours only on loan, and that we were not chosen to receive it because of any particular merit on our part, that shouldn’t be too much of a leap. It should make us more willing to grant similar unearned goodies to other people. “Use each man according to his deserts,” says Hamlet, “and who should ‘scape whipping?” Or unemployment, as the case may be. Even us, the few, the proud, the overqualified.

Red Emma


May 29, 2011

Recommended Reading

I have a client who now resides in a nursing home and is in the early-to-middle phases of dementia. She is also a sci-fi fan, so whenever I clean out my bookshelves, I take the proceeds to her. I am discovering that, while that improves the quality of my life, it doesn’t necessary change hers all that much. Because one of the few so-far-unheralded upsides of dementia, at least in its early phases, in that you get what I have always wanted—multiple opportunities to read the same book for the first time.

Among the books I have especially wanted multiple shots at in this way are John Brunner’s line of speculative novels: Stand on Zanzibar (1968), Jagged Orbit (1970), The Sheep Look Up (1972), and The Shockwave Rider (1975.) And I spent a fair amount of time wishing there was somebody around right now who writes that kind of stuff, preferably in batches rather than an occasional one-off like Orson Scott Card’s Empire and Hidden Empire (okay, that makes them a two-off, I guess.) I think I’ve found one—John Barnes, author of Mother of Storms, Directive 51, and The Man Who Pulled Down the Sky.. Unlike Brunner and Card, he does dabble in the Irwin Allen school of writing (one damn disaster after another), but in the process he takes a serious look at the trajectories of current social, technological, economic, and political phenomena. Consider this a recommendation.

The Unknowing God

For a period that lapped over into my college years, the existentialists told us that the human race is engaged in a frantic effort to become god. As I think about it these days, I am increasingly convinced that many of us already are god, and we are failing to notice it (and falling down on the job) to a dangerous extent. Me, for instance. Most of my days I spend working, on the phone, on the computer, at the office, in court, at home running around finding things (and of course losing things and not realizing it till later), shopping, and so on. If in the middle of all this, I sit down and call the Wired Cat, and she comes over to me, sits down at my feet, and reaches out her front paw to pat my leg, to which I respond by reaching down to rub her head between her ears and down to her neck, for her this is a religious experience. Her divinity has taken time out from managing the universe to communicate with, relate to, and pleasure her. Sometimes, like most divinities, I do things she really doesn’t like, such as taking her to the vet. She seems to accept this as good for her in some way that I understand and she doesn’t. She’s lucky enough to have a divinity who doesn’t do any of the awful things to her that one hears about on Animal Planet (Mr. Wired is an Animal Cops junkie and a hard-core groupie of Anne-Marie Lucas.) But if it did, she’d probably accept that too, as most domestic animals seem to. The ones who have been too utterly traumatized retreat into the animal counterpart of atheism—the feral life. (Atheism is not actually the right word—I am not the first to wonder if there is a word for somebody who believes in the Holy One but just doesn’t like H* very much.)

And of course, to our children, and to most of the children we come into extended contact with (as teachers, for instance, and maybe as pediatric health professionals), we are also god. (Note the lower-case initial, used—as Grace Slick explained when she named her kid “god”—so we won’t get stuck-up about it.) So far as the kids can tell, we (especially parents but adults in general to a considerable extent) run the universe, and occasionally take time out from doing that to interact with the kids, for better and for worse.

The Bible actually plays with this idea. For instance there are two or three references to judges as gods. (One suspects some of the human authors of these passages spent some time on the bench themselves—certainly ordinary human judges have always tended to see themselves as some kind of deity.) Moses is told that he is going to be “in the place of G-d” to Pharaoh, and that his smoother-talking brother Aaron will be his “prophet.”

And there is a story about a rabbi (Hasidic, I think) who, upon being told that somebody he knew was an atheist, said something like “Well, that’s good. It means that if he sees somebody who is poor or in trouble, he won’t just say ‘G-d will help him,’ he’ll get up and actually do something for the guy.” Even professionally religious people may have a kind thought for people who, not believing in a divinity, feel obliged to fill in for H*.

Which, if you accept the hard-core deterministic schema of the behavior of all non-human entities, means that human beings and their actions are the only preserve of free will in the universe, and thus also the only rational place for the divine to operate, by inspiration and impulse. Many rational religious people have trouble believing that the Holy One has ever made the sun stand still or water run uphill, but will accept a divine push toward extraordinarily decent human behavior—in other words, that we are not exactly in the hands of G-d, sometimes we are the hands of G-d.

Jane Grey
War is the End, part II

Does anybody else remember the study that told us we could have won the hearts and minds of the Vietnamese people by giving $10,000.00 to every man, woman, and child in that country, and still have spent less than the $686 billion we actually spent on the war? (Another sourcing problem, obviously.) Anyway, Cecil Adams, of “The Straight Dope” has heard from a history scholar who says the North could have bought and freed all the slaves in the then-US for something like $72 billion in present-day dollars, which was also considerably less than the overall cost of the Civil War, especially if you reckon costs and damages on both sides, which of course all ultimately came out of US GNP. This once more tells us that wars are almost never “about” their official causes and purposes, which could almost always be implemented a lot more cheaply, easily, and with less violence. War itself, or some so far unknown concomitant of war, makes it an irreplaceable element of human polity.

Red Emma

Life Among the Condonauts

I just opened a mysterious envelope from a fellow resident of our condominium building, to discover that, as a member of the condo association, the Wired Household is being sued by another member of the association and by our really heroically estimable janitor, for the alleged misconduct of the erstwhile chair of the association, our upstairs neighbor. This is a peculiarity of condo law-—in order to obtain a remedy for some misbehavior by condo association officers, you have to sue the association, even if you are a member of it. Which means that you are, in a sense, suing yourself. You are certainly costing yourself money. All the costs of defending the suit come out of the pockets of the residents. We could even wind up paying the costs of the other side. This damn thing has got to be mediated, ASAP.

I am the only attorney I know who lives in a condo (for 31 years now) and has never served on the board. I really want to keep it that way. Lawyers are easy marks for pleas of communal obligation. But condo boards are a time sink. I just sent a frantic email to the plaintiffs asking them to please consider mediation. Yikes!


A New Look at Child Labor

May 12, 2011

I googled “child labor” recently, and all I could find was stuff on how much of it there still in the world, and why it was so bad. Nobody seems to be looking at, or even for, an upside. Okay, maybe this is kind of like looking for the upside of the Third Reich (the Volkswagen?) or the reign of Caligula (no bright ideas at all here.) But I think there are actually a few good things to be said about child labor, at least within proper limits.

Depending on what you mean by “labor.” If what you mean by “labor” is doing something that will wear you out and use you up within 20 years or less, no matter what age you start doing it at, then, no matter when you start, it’s a bad idea. Like coal mining, for instance. It was bad when 9-year-old kids were pulling coal carts in 19th-century England, and it’s just about as bad today when 45-year-old men die of Black Lung after 20 years of it, in Kentucky. The use of child labor instead of adult labor has all kinds of nasty side effects, such as lowering the general wage rate (under the odd misimpression that it‘s okay to pay for the same work at lower rates when a smaller person does the work,) and increasing the unemployment rate among adults. And working employees too hard and too long to allow them any kind of personal life or education is bad, whether you do it to kids or adults. Paying them so little that they have to supplement their wages with the only kind of “moonlighting” they have the time and energy for, namely prostitution—whether you do it to women or children—is as immoral as it gets. For further information, read Dickens.

In short, I’m not sure there is any way in which the bad side of child labor for the child is any worse than the bad side of adult labor for the adult worker. Since adults make the laws, and since one of the bad sides of child labor for adult workers is lowering wages and increasing unemployment, that didn’t really matter much once the groundswell against child labor started to grow. Progressivism and New Deal trade unionism both leaned strongly in the direction of getting people other than prime-working-age adult white males out of the workforce, using whatever rationale happened to be handy at the moment. Which was often good for families, good for adult workers, and good for The Economy.

But societies that have banned child labor (not to be confused with societies that have actually eliminated it) have created problems of their own. The most notable is that, in such societies, children are an economic liability to their parents, and may suffer abuse or neglect from them as a result. In places like China, if you can’t sell your child’s labor, you may end up selling the child instead. In places where nobody’s buying, you may simply abandon the child, either in some exposed place or in some “orphanage.” Either way, the child may die young or never develop its full mental and physical potential.

But as long as poverty persists among families, banning child labor is unlikely to completely eliminate it. Child labor persists in the US in fast food joints, on farms, and most notably in criminal enterprises, where the fact that a juvenile will get no more than a nominal punishment for conduct that could put an adult away for a long time makes “shorties” really desirable employees for look-out and courier duty.

Oddly enough, most families affluent enough not to need to put their children into the legal, semi-legal, or illegal workforce, tend not to expect much labor from them at home either. My mother, who was #5 of 8 children, once told me that her mother told her, “Once your oldest daughter is 8 years old, it doesn’t matter how many more you have; one of the older ones will always be able to take care of the younger ones.” Both because such large families are rare today, and because middle-class Americans disapprove of anybody under 12 doing any kind of child care or major domestic chores, this doesn’t happen any more. Child development “experts” generally believe that children should be expected to help out around the house and clean up after themselves, and should not get their allowance as “wages” for these tasks, but they get listened to only slightly more on this subject than on the topic of corporal punishment, which isn’t much.

Okay, that’s pretty much the adult side of the issue. What about the kids? The advantage of writing about children, of course, is that even if you’ve never raised one, you and every other person on the planet has been one. (Original sin consists of having been born with parents, which is why Adam and Eve escaped it.) Do y’all remember the time in your early teens and the years just before that when you really really really wanted to do something real and significant and useful and necessary? There are long stages of child development in which the child’s play consists of nothing but imitating (to the best of her knowledge and ability) the adult’s work. Sometimes that knowledge and ability can be pretty impressive. The computer skills of people we usually regard as “kids” can be downright amazing, and sometimes even remunerative. The Wired Daughter, between ages 15 and 18, got herself a job in a social service agency working with runaway youth, doing all kinds of statistical correlation and record-keeping, much more skilfully and assiduously than most adults I have known doing the same kind of work. Because it was a non-profit, nobody worried much about child labor laws, least of all our daughter, who was having the time of her life. Once she turned 18 she turned (temporarily, thank heaven) into a slacker. But not letting her do the work of her choice before that would have been a real injustice to her. When my nephew was the same age, he worked until well after the official closing time in a local restaurant, and found it both enjoyable and liberating. When I was the same age, I was learning to sew, and type, and cook, and write. All of us, of course, were also going to school and doing pretty well at it. None of us were dependent on earnings from such work. Which gets rid of most of the downside of child labor. I think that’s just a stage of development kids go through, with or without compensation, and it’s a good thing for all of us that they do.

On the other hand…

As more and more “middle-class” families in the US find themselves sliding out of the bourgeoisie, the role of child labor in such families will become more and more difficult. Most middle-class and even working-class families today do not expect their children to contribute to the household income, even by paying rent when they are working full-time and living with their parents. Most middle-class parents are really uncomfortable sharing the financial realities of their lives with their children (often, even after the said “children” have long since reached adulthood.) The whole point of being “middle-class” in this culture’s families is that the parents never have to admit to their children that they can’t “make it” in this economy, or even seriously discuss what it would mean not to ”make it.” No doubt it’s comfortable for a child to believe that the parents will always be able to “manage,” just as it’s comfortable for the child to believe that Daddy can beat up any other guy on the block. Until recently, the majority of American kids had no reason to disbelieve either proposition. Now, child development “experts” are taking on these issues, with varying degrees of success. It would probably help them, and the parents they advise, and the children who do or don’t benefit from that advice, if we could start talking more explicitly about what children can do to help their families in a bad economy, and why letting them do it isn’t unthinkable.

Red Emma

The Blockhead’s Market

May 1, 2011

“No man but a blockhead ever wrote, except for money.” Samuel Johnson

Arianna Huffington is being sued by some of her former unpaid bloggers. Jonathan Tasini and the other members of his class action against her complain that they created the value of the Huffington Post with their unpaid writing, and she then sold it to AOL for $315M. The bloggers, of course, got none of that money. The plaintiffs want a cut, at least $105M.