Archive for April, 2007


Posted in Taboo Subjects, The Law on April 25th, 2007

As I write this, I can just hear my grade falling. In an attempt to (over)compensate for the professorial tendency to give higher marks to those who agree with them, Dersh admits that disagreeing with him might garner higher marks. However, try as I might, I still find his arguments largely compelling

Torture – does it work?
This is a great avoidance doctrine. If those claiming it does not were judges, they would be citing political questions and non-justiciability. If torture did not work, we would have no need to grapple with the tough questions we now face. Instead, like the question of pushing a fat man on train tracks to stop it from hitting people, the matter of torture would be relegated to the halls of academia – more specifically, the Philosophy Hall.

Instead, we do have to grapple with these issues. Torture sometimes works. if it did not, it would not be so widely (but secretly practiced) It is not a matter, as some protest, of the reliability of the information given. The 5th Amendment’s prohibitions are well placed, since a confession would be much less reliable if physically, or even psychologically, coerced. Instead we are dealing with the matter of prospective information, information that can be verified if before the person in question is released.

Confining ourselves to the category of torture that deals with information about impending acts may eliminate some real-life instances (such as sadistic guards, confessions and show trials, and Posner points out) but since those are easy questions, I will put them aside for now. In this restricted case, there is not incentive on the part of the torturer to obtain false information. The practice will continue until the information is verified. False information will still be obtained, but in that case it will be revealed by someone who is accepting the future repercussions, and is making that sacrifice for his cause. Misleading information is part of their strategy, and will have to be part of the calculus. But it is not a constant, and so we are dealing with the fact that sometimes, torture works.

Is Torture Ever Right?

Again I will cite Posner. No, torture is never right. However, sometimes we are faced with the choice of two wrongs. The wrong of causing a human being pain against the wrong his allies will cause to innocents, perhaps many. It is a terrible balancing test to have to do, and I can therefore understand the drive to find avoidance doctrines.

Just how to balance these wrongs is a widely disputed question. I do not think there is a right answer. Some say that to sacrifice the kidnapped child, the anthrax-poisoned city might be worthwhile. That what we give up when we lower ourselves to torture is too great a cost, no matter what is on the other side. There is validity in this argument, but few espouse it.

More common is a wavering in the so-called “ticking bomb” scenario, when the torture of one will save millions. Once we accept this as an example of one time torture may be allowable, we change the calculus. The question is not if, but when. We enter into a realm of myriad scenarios, countless combinations of factors on either side of the scale. Is it right when thousands are at risk? Hundreds? Just one innocent? Does it matter if that person at risk is a high school dropout or a Pulitzer Prise winning scientist? A seven year old with her whole life ahead of her, or a 90 year old man who will die within months? Does it matter if that person is an orphaned infant, with no self awareness, or a brain-dead vegetable, or has an IQ of an ape? If the last is worth torturing for – is an ape?

And how many must we torture? Ten terrorists to save one innocent? Does it matter if that torture is psychological? Sleep deprivation? If all we do is administer truth serum? Water boarding? What if that torture risks their life?

And what if we are not sure there is a bomb? We think the kidnapped child in question is dead, but we are not sure. We think he is lying about having anthrax. What calculus can justify torture then?

I do hate posting more questions than answers. But as you can see, all three of these categories can combine in a thousand ways, and each calculus is different. I am inclined to agree that in the most extraordinary of cases, in which the lives to be saved are numerous and the method of torture non-lethal, torture is the right thing to do. I am not quite sure where I draw my line, but it is somewhere before torturing ten people who may be innocent on the slight chance one may be harmed.

How Should We Do It?

As Dersh points out, this question can be unrelated to the last. It is possible to take th absolutist position advocating an all-out ban on torture, and still advocate for legal mechanisms. This is possible because torture is going on, whether legal or not. If it is possible to force it through review and make sure that an objective person is doing the balancing above, that is an improvement on the current situation in which the choice is left to an individual agent with no oversight.

While an articulable argument can be made on the other side – that it is better to keep it in secret, that legitimating it is too high a cost to control it – I do not find these arguments convincing. Nor are they novel – they are the reason for the current drug war, when legalization would decrease organized crime and the hazards of drug use. Our society has come out the other side, too, at least on the surface – better to legalize abortions than to subject women to the hazards of back-alley ones, since they will get them anyway. However, as I have never heard someone who is actually opposed to abortion make that argument, it has little force here. It appears that our country prefers the hazards of illegality to the governmental imprimatur of legality.  In this sense, I will remain with the minority, as I do on the drug issue.  The costs we are paying are too great for the slight benefit of clean hands. I think we exaggerate how much approval of a practice legitimizes it (see SCOTUS’s approval of Japanese internment in Koramatsu, which did not translate to or affect popular opinion)

One Caveat

I’m not so sure the torture warrant would work.  The scheme assumes that just because there is a legal channel, people with take it.  The scheme, however, is pitted against a longstanding tradition of practice which it needs to alter. Dersh seems to address this point when he argues that the necessity defense would be unavailable, and that absolute  liability would attach when someone could have obtained a warrant but didn’t.  But in a setting where there is an all-out ban and people are not prosecuted, this is a leap of logic.  Would prosecutions and reportings of these instances increase just because a warrant mechanism is put into place?  Against the reality of military culture, I find this doubtful.

He also cites the fact that the higher-ups give a ‘wink and a nod’ to those below them when telling them not to torture.  I think in this lies the spark of possibility that warrants will change things.  Higher ups might exist in a culture that wants to reduce liability.  It is possible that when a mechanism is available, the calculus of our leaders will change, and they will seek the protection and lack of liability that most do. This would depend either on them considering the costs of obtaining a warrant low, or on the possibility of discovery of their covert approval. In the wake of Abu Ghraib, this is possible.  But I don’t think it is probable.

And thus, the warrants work only if used.  If, as with gun control, this means only law-abiding citizens will now be subject to judicial oversight, we have a problem.  They will then have more of a likelihood of torturing; those that would have  aided by the prohibition merely because it was the law will now add to the amount of torture going on.  If the amount of covert torture continues under the radar, this means that the effect of the warrant procedure will be more torture.

Which gets us back to the question of whether it is ever justified.  Assuming that the law-abiding, warrant-approved torture that will be added to the mix saves lives, the torture warrants may be an improvement. It doesn’t quite work the way Dersh wants and relies, as he does not want to, in the justification of some torture (indeed the assumption it can be a good thing).

So we have two possibilities for improvement. Either the judges will act responsibly, torture is sometimes a good thing to do, and there will be  an overall benefit.  Or, I am underestimating military culture and the warrants will decrease the amount of unjustified torture.  Both possibilities turn on tough moral issues and moreover they turn on basic human nature, and the behavior of two sets of people.  In this sense, they are unanswerable.  I cannot get into the mind of a military commander or that of a judge.  They are not uniform actors, and the effect will depend on which leaders and judges end up with these questions at their feet.  These are unknowable, and so, therefore, are the effects of a torture warrant.

The politics of cause and effect: In defense of Project Prevention

Posted in Race Relations Law, The Law on April 22nd, 2007

This essay is a work in progress. For now I set out only my thesis and introduction. It is part of a seven-part series on race relations, and is being considered for submissions. Comments most welcome.

The politics of cause and effect: In defense of Project Prevention

Project Prevention encourages drug-addicted mothers to undergo sterilization or semi-permanent birth control. For such women, the procedures or drugs are paid for by the organization, which also offers a $200 incentive. The group has been the center of a considerable amount of controversy; it is seen as having a disproportionate effect on black women, as interfering with the right to procreation, and because the cash incentives are presumably spent to purchase more drugs.

In this paper, I will discuss how such criticism is insufficient to overcome the compelling reasons for offering such a program. Although the cause of the higher rates of drug addiction is at least partially historical racism, and the effect is eugenic-like in fact, the program itself has compelling positive effects on the individual and on the community as a whole.

To begin, this issue is distinct from the differing sentencing requirements that have a racially disproportionate effect, namely because the organization does not distinguish between various drugs and alcohol.

Second, the idea that it is motivated by racially discriminatory motives is belief by the history of the organization. It was begun by Barbara Harris, a woman in a mixed-race marriage who adopted an eight month old girl. [1] Although the symptoms of the child’s exposure to crack were gone by then, the child’s mother soon gave birth to another child, who Ms. Harris adopted. Watching her new son suffer compelled her to action, as did the birth and adoption of two more siblings. Harris soon learned that she could not press charges against the mother, or in any way prevent her from repeating her behavior once again; an attempt to change the law also failed. Harris’ life offers both a compelling example of why such a program is needed, and evidence that it was not motivated by racial animus.

Cultural Reparations to Address Modern Poverty


This is part of a seven-part series on Race Relations, and is being considered for submission.

Cultural Reparations to Address Modern Poverty

In the following essay, I will argue that many of the repercussions of slavery and segregation are cultural and social, not economic. I will further argue that economic reparations are insufficient to remedy these effects, not just because the cause is economic but because financial reparations can offer no lasting remedy.

There is no arguing the point that many of the effects of slavery and segregation are economic. After liberation, many slaves were set free with little more than the clothes on their backs. Yet inheritance itself cannot be the only cause. 91.9% of Americans receive no inheritance whatsoever, and only 2.7% receive $50,000 or more.[1] Therefore, other factors must be at play in the wide economic disparities between racial groups.

Certain factors of a parent’s wealth affect a child’s ability to thrive later in life. Middle class parents can purchase a better education for their children. They live in wealthier school districts, which have higher quality schools. They can often afford tutors, and can pay tuition at colleges. Children of wealthier parents have less need to resort to theft, drug sales, and other crime in order to attain the goods they want. Although the incidents of thrill-seeking criminal behavior among the off-spring of the rich is on the rise, such incidents are far less likely to impact that child’s future when the parent can purchase a good lawyer. Furthermore, an increasing prominence of high-end labels in urban culture only worsens this effect; consumerism and peer pressure now tempt children in poverty towards items they cannot afford.

However, these factors alone still cannot explain the link between slavery and modern poverty. For example, although most Vietnamese-Americans descend from recent refugees,[2] their income and employment levels are higher than those of the African-American averages.[3] Not only does this difference indicate that inherited wealth is not necessary to economic success, but it may provide suggestions for approaches to the problem at hand. The refugees were largely educated and skilled, and received sponsorship and other support from American agencies and citizens.

While poverty is not the sole direct cause of the high rate of poverty in African-American communities, it is an indirect cause though many incidents of poverty. Education, crime, single parent families, and culture are all factors which are self-perpetuating in modern culture. Education – Finance

It is rarely questioned that a good education helps children succeed in life. Local funding of schools means that children who are raised in poverty attend some of the lowest rated public schools in America. Meanwhile, some of the best public schools are located in neighborhoods which few lower- and middle-class families can afford to live in. Various solutions have been suggested and even tried – such as bussing children to schools in wealthy districts, creating quota systems to distribute children by race, subsidizing private education, and the creation of magnet schools.

These solutions are problematic in and of themselves, but moreover they are piecemeal solutions to a large, systematic problem. Bussing creates a hardship on children who must endure a longer commute than their peers, and who often find themselves unable to fit in with classmates of a different background. Such social ostracism can and does have an effect on a child’s ability to concentrate and perform well. Quotas are problematic both because they incorporate the commuting difficulty and because they have a tendency to stigmatize by creating racial classifications.

The subsidy of private education is problematic as well. Since it only covers part of the cost of the education, it does little to help the poor who cannot afford the remainder. Furthermore, it diverts funds from the public schools where those poor children remain. Lastly, the creation of magnet schools does much to help the accelerated children who can qualify for admission, but little for the average and below-average students who cannot.

What I propose is a policy that entitles each child in America to the same amount of funding. Each school, regardless of the wealth of its local residents, would receive an equal amount per child. Such a move may be a drastic departure from our current system. It has not yet been prominently advocated for by those who propose education reform. Yet in the context of reparations, the analysis is different. We are remedying the horrors of slavery, and the shame of segregation. We are compensating for countless years of unpaid labor. In this context, the proposal seems less dramatic.

Of course, this solution is not without its difficulties. If a national system cannot be upheld under federalism principles, there will still be State to State differences in funding. Higher crime rates in poor neighborhoods may mean that quality teachers will need to be paid more, resulting in less money to spend on other things. (or even justifying giving these districts more per child)

Education – Culture

Yet another problem is cultural. There is a reason that I am joined here at Harvard Law not just by graduates of the wealthy public high school where my father teaches, but by the children of his colleagues as well. Although as the children of teachers we did not enjoy the same financial advantages, we certainly were taught an enduring emphasis on education which doubtlessly contributed to our academic success. In short, parents’ involvement in their child’s schooling is an important factor in predicting academic success. [4]

African-American parents are less likely to be involved in, and knowledgeable about their children’s schooling than European-American parents.[5] The possible causes of these discrepancies are difficult to pinpoint. A lifetime of enduring racism may have lead a parent to have little hope for their child’s academic success. A parent working longer hours or multiple jobs will have less time for homework help, preventing truancy, or parent teacher conferences – a problem exacerbated by higher incidences of single-parent households among the poor. A parent’s own knowledge is part of the cycle of education – a mother is less likely to be able to help her older child with homework than a mother who received higher or better education.

Just as difficult is finding a solution. One possible remedy is tutoring – state-funded homework help and scholastic monitoring can help alleviate the difficulties that face time-strapped and under-educated parents. Yet insofar as a different emphasis on the importance of education may be a factor, the solution is far more elusive and fraught with potential difficulties of cultural stereotypes and cultural insensitivity.


Criminal convictions correlate highly with both poverty and race. This fact cannot be analyzed in a vacuum; it is inevitable that improvements in educational opportunities, and an overall reduction in poverty will decrease this tendency among black youth. Yet this problem is so pervasive it cannot wait for incidental improvements that will doubtless evolve over time.

Crime is a trickier issue, since members of the criminal’s race are typically the victims of his crime. The state of modern criminal law is unfair; the wealthy can afford lawyers who make a real and significant difference in negotiated plea bargaining and trial results. The reality of subtle and unconscious racism still infects juries even where overt racism is on the decline.

Yet any attempt to remedy this would place a burden on black victims of crime. By allowing these criminals to obtain shorter sentences in plea bargains, and to escape prison by procedural and trial acumen, the subsequent crimes those freed commit will mainly affect law abiding blacks and their communities.

Does this mean that white people are burdened by the current leniency toward whites? The effect is far more slight since the rate of criminality is so much lower. To the extent that white persons live in crime-ridden neighborhoods, they do indeed pay similar costs. Yet the remedy is not to make law abiding blacks suffer just as much as they do.

This higher cost does not conclude the matter. One may also argue that procedural fairness is a right all Americans enjoy. To the extent that the public defenders are providing inadequate assistance of counsel, the need for all to have competent counsel may mean the costs to the black community are an incidental effect we must tolerate to have a fully functional criminal justice system. Additionally, if lawyers are not adequately vindicating violations of the fourth and fifth amendments of blacks, the lesser application of the exclusionary rule my mean that all blacks are subject to more violations of their civil rights. Without an effective remedy, we rely solely on the integrity of police officers to protect these rights. Sadly, this is not always adequate.

For these reasons, I propose equality of legal defense as a means of cultural reparations, but tentatively. While cognizant of the harm that will occur to black communities, I would advocate adequate counsel as a basic right that the US government is failing to ensure. The current standards that allow a judge to overturn a conviction for ineffective assistance of counsel are woefully insufficient, and allows such behavior as falling asleep during the trial and failure to adduce evidence during sentencing.

A cognizable argument could be made that this right inures irrespective of reparations. However, in a country that fails to recognize positive economic rights, there is not widespread acceptance that providing a higher standard of counsel, including the high costs we would need to bear, is our responsibility. Reframing the higher criminality rates as a result of the poverty that stems from slavery and segregation may provide the argument needed to gain support for expensive improvements.

An alternatve argument would be to mimic the Canadian system, in which there is a spending limit on counsel. By setting this limit high enough, we could avoid forcing all defendants to a defense below the standards all should enjoy. Yet insofar as expensive counsel can free the guilty above and beyond simply vindicating their rights and ensuring fairness, an argument could be made that this limitation would provide the greater equality that we owe the victims of racism.

There is one area in which such a remedy is warranted – death penalty sentencing. If all defendants facing capital punishment were granted a higher level of legal assistance, the costs on the black community would be minimal. Since the alternative at this point is typically life imprisonment, those freed by a higher level of legal representation would not be able to commit more crime. While an argument could be made that it would reduce alleged deterrent power of the death penalty, such an argument rests on speculation at best. The possibility that a deterrent effect exists, and that it may be controlled by the ability of those considering crime to later afford good counsel, is overridden by the need to ensure procedural fairness and to compensate the descendants of slaves for both the unpaid labor of their ancestors and the ancillary effects that has had on their own generation.

These are only a few of the possible means of reparations through cultural endeavors. By directly targeting the most harmful effects of slavery, segregation, and racism, we can ensure that those efforts are efficient and long lasting.

[1] G. William Domhoff, Wealth, Income, and Power (last visited April 14, 2007)
[2] Marc Povell The History of Vietnamese Immigration

[3] The median household income of blacks is $29,423 as compared to $44,828 for Vietnamese.

[4] Family Involvement in Children’s Education
[5] Annette Lareau, Social Class Differences in Family-School Relationships: The Importance of Cultural Capital Sociology of Education > Vol. 60, No. 2 (Apr., 1987), pp. 73-85

Affirmative Action For Women


This is part of a seven-part series on Race Relations that are being considered for submission.  I will need to submit two more essays, and this is one of my top contenders.  It is running long and will need to be edited if it is chosen.

I. The Goal of Affirmative Action

The justifications for racial affirmative action stem from: 1) An underrepresentation of minorities, and 2) The impression that that underrepresentation stems from unequal opportunities. Gender-based affirmative action can also be justified under both of these causes. Women are proportionally underrepresented in many areas. Furthermore, there is a common perception that gender-biased policies and perceptions are the cause of this underrepresentation.

A. Diversity

To the extent that one is arguing for diversity, women and minorities face different, but comparable issues. In both cases, there is a need not just for representation, but for representation that rises above the level of tokenism. In this respect, as well, women have an advantage. Since women are half the population, even numbers that are merely half of proportional representation will be a ‘critical mass’.

By critical mass, I mean a sufficient number of women or minorities in a workplace that they can become a supportive community for each other. Both women and minorities face different issues than do their white male counterparts. To the extent that they are the only ones of their kind, or even part of a significant ‘first generation’, they will lack mentors and role models from the higher ranks to help them deal with the issues unique to their race or gender. Tokenism also comes into play when one is part of a small group – a woman or a minority will feel pressure to represent their group, or may feel stigmatized or isolated by the impression their membership in that group gave them an unfair advantage.

Since racial minorities are just that – and therefore a smaller group in society itself, they are less likely to achieve this critical mass. When a group represents twelve percent of the population, affirmative action that results in them making up five percent of the workforce may not be enough to overcome the tokenism problem. Therefore, although advantages for both women and minorities may help work towards diversity, these efforts are less needed for women than they are for blacks and Hispanics.

B. Disadvantages

The underrepresentation of minorities in things such as colleges and workplaces is perceived as stemming from our history of slavery and racism. Wealth is inheritable, and parents can pass onto their children more than just trust funds: such as money for educational opportunities, homework help, education-based values, and legacy admissions. Descending from slaves reduces the chances that one will be in this situation – there would have been fewer privileged generations in which one’s ancestors could obtain the status that would have filtered down to today’s children. Segregation and the societal reality of racism decrease these odds even further. We are just now reaching a point at which college students have parents who did not grow up during segregation, meaning that, insofar as it was a barrier to achievement in and of itself, there has only been one generation with the opportunity to become self-made and place their children in advantaged positions.

None of these concerns are implicated in gender. Women are just as likely to have wealthy parents as men are. The real difference, then would be in the way these parents treat their daughters. If they are making gender-based assumptions about what these women should or can accomplish, these inheritable advantages will not be passed on. While this is very much a reality, especially in religious or conservative populations, I would argue that it does not rise to the level of racial disadvantage.

II Real v. Perceived Differences

A. Intelligence

These policies are premised on the notion that there are no inherent differences between blacks and whites, women and men. Although an atmosphere that discourages academic exploration of racial differences has prevented us from proving so conclusively, the serious flaws in the articles concluding that there is a real difference in innate intelligence lend credence to the idea that differences between the races are situational. Although IQ scores and other attempts to determine intelligence show differences, it is impossible to disprove the theory that these differences are caused by external factors. Differences in parental income and education may well be the entire causal factor.

Even tests on young infants which attempt to prove innate differences ignore the possibility that the pregnancy itself may effect development. Wealthier women are more likely to have extensive, frequent medical care, more likely to take expensive natal vitamins, and more likely to have better nutrition. Unfortunately, they are also less likely to take drugs that may harm their children.

Although one could argue that the differences, whatever their cause, justify underrepresentation in colleges and workplaces, this is an arguable point. In a society which strives to allow each person to achieve their potential, the long-term consequences of affirmative action weigh in favor of diversity. If these differences are externally caused, then assuring more equality of outcome will help prevent these same factors from influencing the abilities of the next generation. Additionally, insofar as these differences can be overcome by an adult, giving minorities the same opportunities would give each person the opportunity to ‘catch up’ as they progress.

There is no reason to believe that similar factors affect gender, since there is no difference in parentage, moreover there is less of an intelligence gap to explain. Although some differences have been found, the same academic taboos have prevented us from really knowing whether there are cognitive differences between men and women in math and sciences. However, insofar as women excel in other equally valuable fields, such as English, psychology, and history, we can conclude that there is no innate discrepancy between the intelligence of men and women.

B. Achievement

Perhaps the most compelling difference between gender and race is the extent to which achievement is caused by external vs. internal factors. Although both groups are arguably equal in potential intelligence, there is very little reason to believe that if all else (education, intelligence) are equal, that a minority would accomplish less. Only the most extreme racists have advocated racial differences in work ethic and ambition.

On the other hand, a significant portion of women’s underrepresentation stems from what they do once they have achieved equal intelligence, education, and even employment. In the law firm context, the retention of women is cited as a major problem. Even when women are accepted into law school and hired in equal numbers, they will still be underrepresented in the partnership of these firms. For biological and cultural differences that I discuss below, there are real differences in what women do with equal opportunities. Therefore, these programs will have much less result on the highest levels than will affirmative action for racial minorities.

C. Predictability of Differences

These differences in achievement mean that the generalized differences for racial minorities do not apply to a single individual. If someone can prove themselves equal in intelligence and education, an employer or admissions officer has no reason to believe that the general discrepancies have any bearing on that person’s potential. On the other hand, since women have different retention rates, these generalities cannot be disproved on the individual level. Since the difference is yet to be seen, an employer can reasonably look at generalities and expect them to have some bearing on that woman’s future with his company. It would be difficult for an individual female to ‘prove’ herself as an individual to whom those generalities do not apply.

IV. External v. Internal Differences

A. Biological Differences.

Most of the differences that people observe between persons of different races can arguably be ascribed to external circumstances. The color of one’s skin has no logical bearing on their careers and education; insofar as it does it is a result of external, temporary social causes. The intrinsic differences between men and women are more than skin deep; the biological differences have an impact on societal roles that are unlikely to disappear.

Societal perceptions of women’s abilities are fading with each generation. Although they remain a real source of difference of women’s achievement, this is only part of the reason they are underrepresented in business and government, and only part of the reason they earn less than men do.

Women’s ability to bear children is a chief cause of modern differences. This biological fact is far more relevant than the amount of pigment in one’s skin, and the societal repercussions of this difference are unlikely to disappear entirely. As long as we are to perpetuate the species, this will cause gender differences in the workplace.

In the present it is not just maternity leave which is causing differences in the workplace. Women are far more likely to decide to stay home after having a child, far more likely to take on the role of primary caregiver and have to leave work often to care for a sick child. They are more likely to want to work part time to spend more time with their children.

To the extent that hormones from pregnancy are the cause of this imbalance, these facts may always be with us. However, even if they are a result of societal forces, some differences can never be removed. Many women will choose to breastfeed, so if they return to work they will need time and a space to fulfill this basic need. They will also need to take time off of work to give birth and recover, and will run the risk of having to leave for longer periods of time should complications occur. In a world where women are having children later in life and seeking fertility treatments, such complications will continue becoming more common.

B. Psychological Differences.

The wage gap reflects these differences. Women’s’ decisions to stop working or work part time while raising their children have a very real impact on their lifetime earning. These differences also reflects different career choices that women make – such as nurturing careers like nursing and teaching. Although many women currently in the workforce were pressured by society into choosing nurturing professions, these trends may well continue when these external pressures are removed.

They may well reflect real differences in female psychology, the results of hormonal differences, or a desire to have a more flexible career. It may reflect a lesser drive toward power and money, to the extent that testosterone is a partial cause of such ambitions. Of course, men as a group may shift more toward this perspective, and changes in culture may change women’s priorities as well. However, the possibility that hormonal differences are a causal factor remains, and must be taken into account in formulating affirmative action policies.

IV Reevaluating Affirmative Action

A. Is Change Needed?

However, to the extent that the wage gap reflects different choices, affirmative action may not be needed. If women’s career decisions steer them into lower-paying jobs, the idea that we need to fix the wage gap may itself reflect a bias. If women are consciously choosing paths that deprioritize money, there may be no need to second-guess those choices. Indeed, one can argue that prioritizing family over career, nurturing over power, and free time over money reflects a morally superior position.

Affirmative action efforts that give an unfair advantage to the women who do pursue these careers may be an attempt to remedy a problem that does not exist, and attempts to push women into higher-paying jobs may be interfering with valid decisions. While this does not invalidate attempts to promote and retain women for the sake of diversity and to remedy prejudice, such efforts should not stem from an assumption that pay equality is a necessary result.

B. The End of Affirmative Action

Arguments for racial affirmative action are based on temporary conditions. If affirmative action were able to work ideally, we would be able to use it to change the race-poverty connection. In a world without racism, where past affirmative action has assured blacks jobs and degrees in equal numbers to whites, the next generation of blacks would not be disadvantaged. While this is an impossibility in the short-term, real improvements have been made. It is possible that over the course of the next few generations, we will be much closer to this ideal.

In this situation, affirmative action would not be needed. Thus, there is a real, achievable goal in racial affirmative action. The same cannot necessarily be said of gender-based affirmative action. If differences in psychology and biology are real and permanent, gender-based programs that aim for complete equality may be working towards an impossible goal.

C. What Should These Programs Look Like?

Since racially-based affirmative action exists in a context where gaps in income and education are a result of external forces, complete equality of outcome is possible. It is beyond the scope of this essay to say just how far programs should go to that end, but a full equality of outcome should be the ultimate aim.

In contrast, the goals of gender affirmative action should be to ensure that sexism in elementary and secondary school teachers not be allowed to hurt women’s chances in college admissions, that women from traditional families be given the opportunity to overcome differing parental support, and that we reach out to girls to make sure that they know they can choose any life path they want.

Many have proposed workplace affirmative action, such as extended maternity leave with promises of reinstatement to their former position, paid maternity leave, part-time arrangements, flexible schedules, greater permissiveness for occasional leave, and subsidized daycare. Such programs are designed to improve retention of women, but are not called affirmative action since they are usually available to all employees. However, since the call for such subsidies stem from gender-based goals, and women are by far the greatest users of such programs, that is their effect.

These programs are undertaken voluntarily by employers. To the extent that they are an effort to ensure diversity and critical mass, that is their prerogative. However, to the extent that they reflect pressure from special interest groups, they may actually harm women and unfairly burden other employees. Groups that begin with an assumption that the gender pay gap is an externally-caused problem that needs a remedy may pressure employers to aim for proportional representation. The employer may be reducing the profitability of the company, the pay of their employees, and binding other workers to longer, less flexible hours to maintain these incentive systems. If a majority of companies adopt these policies, employees may have no choice but to accept these burdens for the sake of achieving an impossible goal of equal representation, and of retaining female employees who may still choose other priorities

To the extent that these policies are a result not of pressure to retain women, but to adopt these policies themselves, women may be harmed. An employer who knows that a female employee is far more likely to utilize costly and inconvenient programs may have a disincentive to hire women. Employers who already fear undertaking the costly training for a woman who is likely to leave will have one more conscious or subconscious reason to prefer male applicants.

The solution is to require and pressure companies to hire women and promote remaining female employees at the same rate. If all female applicants are given equal consideration, and equally situated employees are given partnership status and other promotion at rates on par with their male coworkers, the discrepancy seen in higher-ranking employees will truly be a result of choice and differing priorities.

The affirmative action programs described above may still be implemented, but they must be done so while conscious of the policy choices they are making. An employer may still implement them because they feel that more women in leadership is a goal worth the price of these programs, or because they desire to subsidize parenting. However, they should not be undertaken because external pressure are turning a blind eye to real differences between men and women, or are imposing their own value systems on women.

Equal Protection Analysis for Racial Profiling: Reviving Yick Wo in the Martinez-Fuerte Context.


This is part of a seven-part series on Race Relations that are being considered for submission.  This essay was submitted in March as the first of three such essays due.

Equal Protection Analysis for Racial Profiling:

Reviving Yick Wo in the Martinez-Fuerte Context.


Racial profiling should be controlled by the Equal Protection Clause. It is the requirement that the laws apply to all with equal force that prevent democracy from devolving into the ‘tyranny of the majority,’ placing the burdens of society disproportionately on a selected few. Since racial profiling typically targets unpopular and traditionally disenfranchised groups, this concern is especially implicated here.

Although racial profiling is rarely, if ever, codified, it should nonetheless be subject to scrutiny. The regulations and policies being applied are facially neutral, but equal protection analysis should and does apply to the means by which our laws are carried out by police officers and administrators. Furthermore, in many contexts, especially that of border patrols, such profiling is implicit in the facially neutral regulations, creating an even stronger need for such review.

An equal protection analysis would provide a sound basis for balancing the governmental interest in question with the burdens, both real and psychological, that targeting inflicts on minority groups. Racial profiling would be allowable only when the government is attempting to further a compelling societal interest and when racial profiling is a necessary means to that end. Furthermore, applying the strict scrutiny analysis reserved for racial classifications would require that the government “narrowly tailor” its profiling to the interest in question – forcing the government to use this extreme tactic in a manner that entails the least targeting possible.

Equal Protection is an essential policy.

Although protecting Americans from racial discrimination is its own end, Equal Protection also helps guarantee a host of other individual rights and fairness concerns. The judiciary cannot practically review the behavior of legislators and officials; the best check on government is the electorate – the will of those being governed. By requiring that a law that applies to one must also all, we ensure that the government will have to answer in the polls for the results of the laws they pass and the policies they enforce.

Without such protections, legislators could target individuals to fund broad social programs. They could be readily reelected by those who benefit from this redistribution, and those wealthy few who have funded the effort compulsorily would have little recourse. Although the realities of modern campaign funding mitigate this effect by the unequal distribution of influence, popular election still remains the ultimate means of ensuring fairness.

With a stricter Equal Protection analysis, government officials would usually be required to subject all members of society to the same treatment, including themselves and their family. The burdens currently imposed disproportionately on some would then be evenly distributed. When the means being used were not fairly calculated to protect society’s interest, politicians would pay a heavy political price.

Equal Protection is especially important in the racial profiling context.

The governance concerns that make equal protection jurisprudence important are implicated even more so in the context of racial profiling. By its nature racial profiling is targeted upon minority and disfavored groups. The majority is less likely to take the needs of these groups into account when holding elected officials accountable, and these groups are less likely to have a significant impact when exercising their own votes.

For example, African Americans, profiled by police in drug trafficking stops, have a long history of disenfranchisement. Even after being granted the right to vote, blacks were nonetheless prevented from doing so by both official and unofficial means. Grandfather clauses and literacy requirements, as well as threats and intimidation were used to prevent blacks from exercising their right to vote in the past. Even today, more subtle techniques have been used to prevent them from voting – such as purges of felons from voting rolls that encompass innocent individuals with similar names.

In extreme cases, deceptive tactics have been used to prevent the poor and uneducated from voting. Flyers have been distributed in low income neighborhoods, claiming that those with outstanding utility bills should not bother showing up, that they have been specially selected to vote by mail, or that the election has been rescheduled. Such tactics are typically directed at minority groups, who are disproportionately poor.

For these and other reasons, minorities are less likely to be registered voters. Therefore, unfair burdens or burdens not balanced with or necessitated by the governmental interest in question are likely to be posed by officials or legislators in a manner that they could not be were every citizen to be subject to those burdens. This may actually provides an incentive to target minorities when it is politically expedient to do so – making one able to claim a victory to his constituency without having to evenly distribute the costs of such measures.

Equal Protection would not have the same direct when targeting to racial profiling by police or other government agents. Since these officials are not elected, the immediate political price faced would not encourage them to alter their approach. However, making the legislators and other elected officials answerable would have an indirect effect on their policies and behavior. The legislature is free to pass laws narrowing their discretion, to cut their funding then they act egregiously, and to otherwise adopt official policy which agents must follow. Likewise, elected officials with the power to appoint and remove higher-ranking officials, such as police commissioners, would be in a position to demand more balanced polices. Although this effect is weakened by the diluted blame placed on elected individuals for police, action, it would at least ensure that the most egregious policies are erased. Furthermore, it would allow special interest groups to bring attention to what our government is not doing, creating the same effect.

Equal Protection is even more important in border patrols.

This is especially the case in Martizez-Fuerte and all border patrols where those targeted are less likely to be voting citizens are likely to be either legal or illegal aliens. This is compounded by the fact that the tactics described above and statistically lower registration apply to Hispanics as well. Therefore, it would be politically expedient for officials to impose more severe burdens in terms of traffic stops and even searches without having to answer on the political accountability spectrum for the reasonableness soundness and fairness of such policies.

Equal Protection and the application of neutral laws.

In 1886, the Supreme Court stated that a racially neutral ordinance can be “applied by the public authorities charged with their administration . . with a mind so oppressive and unequal as to amount to a practical denial by the state of [equal] protection of the laws.” Yick Wo v. Hopkins, 118 U.S. 351. In that case, a local ordinance required that one must petition the board of supervisors before opening a laundry that was not brick or stone. Id. The board regularly granted permission when the petitioner was white, and denied it when the petitioner was of Chinese descent. Id. One of the concerns of the court was that allowing laws to be administered in such a fashion allows legislatures to grant tremendous discretion to low-level government agents with the understanding that these agencies would use biased factors in their application.

The situation in racial profiling cases, including Martinez-Fuerte is quite similar. Indeed, the provision of a law or warrant allowing border patrol stops implicates the risk that it will be applied in a discriminatory manner more so than a law regulating the structures one may use for a laundry. In setting up a checkpoint to look for illegal aliens, it takes much less a leap of logic to presume that the application of the law will burden those of Hispanic decent more so than Caucasians or other races/ethnicities.

It is important to distinguish this from Equal Protection cases alleging discriminatory affect, where the equal protection challenge is based on indirect repercussions. A large number of neutral regulations, even if applied neutrally, will have different impacts on minorities. The effect here is not an ancillary result of neutrally applied statutes, but is the direct result of police action in singling out racial minorities.

When reviewing challenges to racially unequal application of neutral laws, strict scrutiny would provide us with the best means to analyze the government action. A loose “rational basis” review that the court applies to non-racial classifications is inappropriate. Such review presumes that the purpose of the action is not invidious, and would almost certainly allow even unreasonable and biased conduct. The more searching scrutiny is applied in the context of racial classifications, and is needed whenever the possibility of invidious discrimination exists.

Martinez-Fuerte: The Court’s analysis

The Court’s analysis in Martinez-Fuerte is not helpful in this regard. There, Justice Powell focused exclusively on the fourth amendment aspects of the case. The issue of racial profiling came up only in the context of whether there was individualized suspicion sufficient to justify the questioning.

Within its fourth amendment analysis, the Court in Martinez-Fuerte concludes that the singling out of Hispanics here was not a problematic racial discrimination namely because less than one percent of the motorists passing the checkpoint are stopped whereas the Hispanic population of southern California is between 13-18 percent. This reasoning has several weaknesses. First of all, one cannot simply assume that the population on the highway is going to reflect the population in the area. The relative wealth of racial and ethnic groups will necessarily result in different rate of car ownership. The specific area chosen for a checkpoint may have different rates of ethnic groups by virtue of its location. The conclusion that between 13-18 percent of travelers are Latino is unsubstantiated when based solely on general population trends.

Furthermore, the fact that only 5-8 percent of Hispanics were stopped does not mean that racial profiling is not occurring. If this is a significantly higher percentage than those of other minority groups who were stopped, then the police were engaging in racial profiling. Therefore, the court should have looked more closely at the burdens opposed and the government interest involved.

The court’s fourth amendment analysis is not helpful here. Strict Equal Protection balancing tests do not allow invidious classifications or disparate treatment simply because the level of intrusion is low. It also requires that the government be acting to further a compelling interest, and that the means they are taking are necessary. The fact that the level of intrusion is “minimum” does not address the larger concerns of racial profiling. The fourth amendment analysis is individual-based, and is not equipped to deal with the larger patterns of behavior seen in these cases. Due to the effect of a series of such encounters over ones’ lifetime, the psychological effect of being singled out on a racial basis and the community impact such measures take, even mild questioning could nonetheless have serious results.

The result of such balancing

Many of those who expressed opinions in favor of racial profiling for terrorists in airports nonetheless expressed disdain for racial profiling of blacks in drug enforcement. Such an apparently contradictory policy is explained by importance of the government interest in question. They reason that while preventing a terror attack is a grave concern, confiscating illegal drugs is of lesser importance. Such an approach is consistent with an equal protection analysis which would weigh how compelling the government’s interest is against the burden it imposes.

In the case of border stops, the governmental interest might not justify the racial classification that police officers are engaging in. Much concern over border security stems from worries about the grave threat of terrorism. These concerns will rarely be served by profiling Hispanics, since the bulk of the current terrorist threat is from Middle Eastern peoples simply using Mexico and Canada as a means of entry. Focusing on Hispanics to the detriment of behavior-based profiling may hamper our efforts to find those who pose the greatest risk.

In contrast, those caught by a Latino-based profiling system are more likely to be entering to find work. While the importance of deterring illegal immigration is debatable, it does not rise to as compelling an interest as the prevention of mass murder. Furthermore, with millions of illegal aliens already inside the US, these checkpoints can only help alleviate, not eradicate, the problem.

The narrow tailoring requirement, if imposed, would require changes in racial profiling policy. In regards to drug trafficking, it may require police to rely solely upon behavioral profiling. Since many contend that behavioral profiling is a more accurate means to combat illegal drug trafficking, a policy relying upon it would be more narrowly tailored to the government’s interest. Even if behavioral profiling were just as accurate as racial profiling, the analysis would still mandate that it be used as an available alternative means to achieve the same goal

In the context of airport security and deterring terrorism, our analysis may have to be more deferential to the government. Since the interest is so vital to the safety of our nation, it would be difficult for a court to second-guess executive action – much as it is in the context of military decisions. Fortunately, the established official policies banning racial profiling would answer that question definitively, leaving the court’s free to scrutinize its application.

In the Martinez-Fuerte context, narrow tailoring may require officers to rely on behavioral profiling as well. It is difficult to see how in the context of the search for illegal aliens, police officers would be able to refrain from subconscious racial profiling. However the narrow tailoring requirement would force government to minimize this effect to an extent possible. It could require that police use random searches like those often used at airports. It may require that police be trained to use greater sensitivity in their actions. Lastly, it might require that police have an articulable basis for any questioning or further action taken at these checkpoints.

Although statistically this may result in a lower “hit rate”, such a sacrifice may be worthwhile to minimize the negative impact of racial profiling on local minority communities. By placing the burden on local authorities to justify their actions, this level of scrutiny would enable those who are best equipped to handle the situation to create alternatives to racial profiling. It may require better research in terms of community impact, better statistics on the ethnic background of those passing through, and heightened training in spotting behavioral anomalies. Whatever the success of these measures, the impact would be positive – to require police to carefully consider the consequences of racial profiling.




I sat in the back of the auditorium, watching group after group put on songs and skits about math. When the time came, dozens of students walked to the front to be inducted into the Math Honor Society, my father handing them their pins. I felt like Charlie, pressing his nose against the glass window of the candy store.

I longed for that type of community – others as geeky and enthusiastic as I was. Back at my own high school, I and three other students gathered occasionally to take six-question quizzes, whose scores were sent into the local competition. The faculty was a mix of heroic superstars and the kind of shoddy teachers who couldn’t land the higher-paying jobs.

And I’m only middle class. The local public school had a gang problem, and my parents scrimped to send me to Catholic school. I’m well aware that many others were not so lucky. Still, I begged and begged for my parents to send me to my father’s school. It would have cost over ten thousand dollars per year to attend. Teachers there were not paid nearly enough to afford that, let alone to live in the district. Again, I should be grateful.

Growing up I always thought I was lucky. I heard tales of the tiny bedsit in the dangerous neighborhood where my parents started their marriage. Of my grandparents sleeping on a pullout in the living room so that their four kids could split the two “bedrooms”. When I met husband, I thought I was dammed near rich. With his immigrant father retired, his mother’s small paycheck supported all three of them. Were it not for Social Security, they would have been below the poverty line.

Then I got here. I realized that most people at HLS got to go the the high school they wanted. When it came time to apply to college, their parents pushed them toward Dartmouth, Yale. My own pushed me to the cheapest one I could find, the biggest scholarship. They reasoned that the prestige of my graduate school was the only one that mattered. Hmm . . . perhaps I did have an edge. In retrospect, they seem wiser than those others.

This week, Dershowitz said that Harvard doesn’t care about diversity. They want people of all skin colors, sure, but true diversity would include poor blacks. I have no basis on which to say that is true, but I do have reason to believe he would know. Economic diversity would require affirmative action. Being rich gives you an edge. It gives you great schools, great teachers. Tutors to help you get better grades. Guidance counselors who are not understaffed, who know how to get people into the ‘good’ colleges. The money to afford good test prep, even tutoring for the SAT. It may even mean parents with enough time to monitor your schoolwork. The middle class like me have some of these things, not all.

So if an admissions process were truly blind to income – even removing the ‘legacy’ admits, the rich would still dominate the class. In a school like Harvard with very few spots for many qualified students, all you need is a small edge. In cases where you are applying racial affirmative action, there is no reason to believe the effect is much difference. Sure, there are fewer wealthy blacks in general, but when you are looking at a small pool of spots held open for AA admits, there is still going to be, on average, the same result. Next up will be the middle-class like myself, who got some of these advantages. Even in cases where there is an equal amount of raw talent, the wealthier student will have the better test scores and grades, and will get in.

So why the emphasis on race? Are we really asserting that the effects of racism are stronger than the effects above? Are we assuming that blacks are poor? Or are we emphasizing ‘diversity’ instead of hardship, more concerned with looking like a Benetton ad than we are with allowing those who have been hampered by circumstance to catch up.

I have long since advocated scrapping racially-based affirmative action for a system that placed more of an emphasis on socioeconomic background. For one, this would help to satisfy our constitutional mandate to ‘narrowly tailor’ our programs to avoid race-based classification. In other words, if there is an alternate means to achieve the same goal that would place less, or no, emphasis on race, we must take that route. Poverty is still disproportionately a problem in minority communities. Since we have no proof that there are actual racial differences in ability, it is a combination of this fact with remaining and subconscious racism, that creates the need for affirmative action in the first place.

I would not discount race entirely. If it appeared as if an admissions system based on income would result in a disproportionate number of poor whites, we would need to revisit the question. Several factors may cause this – the effects of racism, difference in cultures that place different levels of priority on education (perhaps as a result of racism) and some would say, different levels of ability (more on that in a subsequent essay) If this were the case, we would indeed, from my perspective, have a problem. There would then be a need to compensate for these difficulties.

But until we see this, i will continue to believe that the higher qualifications of whites that would result in a mostly-white student body (absent affirmative action) are a result of different income levels. To the extent that they are: 1) we have a good proxy for race and narrow tailoring requires we use it, 2) we are being unfair to poor whites who have faced the same barriers.

And indeed if poverty is the cause of the problem, it doesn’t make sense to look for solutions outside of that paradigm.