They need one, anyway. As Matthew Yglesias points out, “The idea is that we can know things are really getting out of hand since even nonwhite people can get loans these days! They ought to be ashamed.”
Perhaps they should have taken their cues from this instead.
The team, Beitar Jerusalem, has long been linked to Mr. Netanyahu’s Likud Party, and for 15 years has been notorious for racism and violence, including an incident last spring in which fans stormed a local mall chanting “Death to Arabs” and beat up several Arab employees. Founded in 1936, it is the only one of Israel’s professional soccer teams never to have recruited an Arab player.
The current controversy concerns the team’s addition of two Muslim players from Chechnya. Although one is injured, the other is expected to play for the first time in a match on Sunday against a team from Sakhnin, an Arab-Israeli town.
In anticipation of the Muslim players’ arrival, some fans unfurled a banner at the team’s Jan. 26 game saying “Beitar Pure Forever.” Some critics said the banner was reminiscent of Nazi Germany’s expulsion of Jews from sport, and it led to nationwide soul-searching.
The greatest irony?
“We cannot accept such racist behavior,” Mr. Netanyahu said. “The Jewish people, who suffered excommunications and expulsions, need to represent a light unto the nations.”
There has long been a double standard in the American media in which blatant Israeli racism towards Arabs and Muslims is largely ignored — or, at best, excused as an outlier — while even the slightest hint of negative sentiments towards Israel — even if motivated primarily by political considerations — is reflexively excoriated as anti-Semitic.
Take, for example, the recent brouhaha at Brooklyn College, where a predictable uproar was fortunately insufficient to prevent the institution from holding an event featuring speakers who support Boycott, Divestment, and Sanctions (B.D.S.) policies relating to Israel. Following the event, Brooklyn College professor Corey Robin blogged about a previous speaker at the school:
In March 2011, David Horowitz spoke at Brooklyn College. Someone yesterday brought to my attention this report from the event. A few highlights:
Given this context, it was all the more disturbing last night when I looked across the crowd and saw tears run down the face of a member of the Palestine Club as Horowitz said to the group of mostly nodding heads, “All through history people have been oppressed but no people has done what the Palestinians have done—no people has shown itself so morally sick as the Palestinians have.”
Horowitz, who admitted he had actually never even been to Israel, proceeded to give everyone a lesson in Middle East politics: according to him, Muslims in the Middle East are “Islamic Nazi’s” who “want to kill Jews, that’s their agenda.” He added later, “all Muslim associations are fronts for the Muslim Brotherhood.”
The most revealing moment came when a young Arab-American woman directed a question to Horowitz and the audience: “You talk about Muslims as if you know them—We have a Muslim American Society, we have a Palestine Club [on campus]. I want to raise the question to any of the Jews in this room, and students, have you guys ever been threatened by a Muslim on campus or an Arab?” To this, the crowd almost unanimously spun around in their seats to face the young woman and replied “yes.” Someone shouted, “and we’re scared when we see Muslims on buses and airplanes too.”
Horowitz encouraged anti-Muslim hate by telling the crowd, “no other people have sunk so low as the Palestinians have and yet everybody is afraid to say this,” claiming that Muslims are a “protected species in this country” and that he’s “wait[ing] for the day when the good Muslims step forward.”
As Robin then asked:
First, how is it that the comments of Horowitz can be so easily admitted into the mansion of “the open exchange of ideas” while the comments of Butler and Barghouti [who spoke at the recent BDS event] seem to threaten the very foundation of that edifice?
It’s a good question, but not one we’re likely to see answered by traditional media establishments any time soon.
Gilad Sharon, the youngest son of Ariel Sharon, penned an op-ed for the Jerusalem Post yesterday:
Why do our citizens have to live with rocket fire from Gaza while we fight with our hands tied? Why are the citizens of Gaza immune? If the Syrians were to open fire on our towns, would we not attack Damascus? If the Cubans were to fire at Miami, wouldn’t Havana suffer the consequences? That’s what’s called “deterrence” – if you shoot at me, I’ll shoot at you. There is no justification for the State of Gaza being able to shoot at our towns with impunity. We need to flatten entire neighborhoods in Gaza. Flatten all of Gaza. The Americans didn’t stop with Hiroshima – the Japanese weren’t surrendering fast enough, so they hit Nagasaki, too.
There should be no electricity in Gaza, no gasoline or moving vehicles, nothing. Then they’d really call for a ceasefire.
Were this to happen, the images from Gaza might be unpleasant – but victory would be swift, and the lives of our soldiers and civilians spared.
IF THE government isn’t prepared to go all the way on this, it will mean reoccupying the entire Gaza Strip. Not a few neighborhoods in the suburbs, as with Cast Lead, but the entire Strip, like in Defensive Shield, so that rockets can no longer be fired.
There is no middle path here – either the Gazans and their infrastructure are made to pay the price, or we reoccupy the entire Gaza Strip. Otherwise there will be no decisive victory. And we’re running out of time – we must achieve victory quickly. The Netanyahu government is on a short international leash. Soon the pressure will start – and a million civilians can’t live under fire for long. This needs to end quickly – with a bang, not a whimper.
Meanwhile, deputy prime minister Eli Yishai was quoted as saying, “We must blow Gaza back to the Middle Ages, destroying all the infrastructure including roads and water.”
The Israelis who condemn Palestinian children’s education for its alleged anti-Semitism should be that much more horrified by their own adult politicians’ behavior.
Last Wednesday, the Supreme Court held a one-hour oralargument in Fisher v. University of Texas, in which our eight justices (Justice Elena Kagan recused herself) engaged in lively debate over the future of racial affirmative action in state universities. (For more on the case, see my post from last week.) Five highlights from that argument:
Predictably, the Justices on the left–Ginsburg, Sotomayor and Breyer–came flying out of the gate with questions for Bert Rein, Abigail Fisher’s attorney. Ginsburg and Sotomayor immediately questioned whether Fisher has suffered the requisite injury she needs to be able to sue, if (as UT claims) she would have been rejected even under a completely race-neutral plan. As is the case with SCOTUS oral arguments in general, a Justice from the other end (Scalia) jumped in not to ask Rein a follow-up question but to provide the answer on his behalf, countering that Fisher’s injury was not the loss of admission but the loss of an opportunity to be considered fairly by UT. Ginsburg, Sotomayor and Breyer seem convinced that the UT admissions scheme satisfies the Grutter test, and Rein certainly received quite a bit of help from Justice Scalia as the liberal justices continued to press him. On the other hand, Justices Alito, Roberts and Scalia hammered Gregory Garre, the attorney for UT, with Sotomayor occasionally stepping in to offer a helping hand.
Both lawyers were repeatedly asked what a “critical mass” of underrepresented minority students at UT might be, at which UT would have adequate student body diversity. When asked by Sotomayor when enough was enough, Rein punted and stated that the definition of “critical mass” (a phrase that comes from Grutter) is something that UT and not Fisher needs to prove, declining to say out loud that the critical mass is whatever number of minorities that the top-10% plan captures in any given year. On the other hand, the conservative justices pressed UT hard on its own fuzzy definition of “critical mass,” appearing at points to try and bait the school into admitting that it has a certain number or percentage of minority admits in mind. This, of course, would be an unconstitutional quota forbidden under Grutter, which is exactly what the conservative wing thinks UT is actually using. UT, for the record, thinks of critical mass as the point where minority students do not feel like the spokespeople for their race, which is a nebulous answer most unsatisfactory for Scalia, Alito and Roberts.
Justice Roberts asked UT’s lawyer, Gregory Garre, about self-identification of race on UT applications and whether the school had any way of knowing when applicants were lying about their minority status. Roberts also wanted to know whether someone who is 1/4 or 1/8 Latino (or 1/32 Latino, as Scalia added on later) could self-identify as being Latino, or whether that would be violating some kind of honor code. Undoubtedly, Roberts’ point was to question the effectiveness and sincerity of UT’s plan to increase classroom diversity, if it has no way of even figuring out which applicants actually are underrepresented minorities. But the flip side of this question seems to undercut Fisher’s argument: if Roberts is right and applicants are fraudulently self-identifying as minorities, that means UT’s student body has an even lower number of minority students than it currently thinks it does.
Justice Alito questioned twice whether it’s fair that affirmative action is being used to help the wrong group of people. Specifically, he wants to know why wealthy African American and Latino students are getting a preference instead of students from underprivileged or even just plain middle-class families. Alito also wants to know how all Asian Americans can be grouped into one category when some ethnic subgroups are more underprivileged and underrepresented than others. UT’s answer is that applicants can state their countries of origin as well, which the school will take into account–but again, Alito doesn’t seem convinced.
The big question in all this is what Justice Kennedy thinks, since he is likely to be the deciding vote. Donald Verrilli, arguing for the United States in support of UT, appealed to the swing justice by bringing up his 2007 concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, in which Kennedy spoke of the country’s strength as arising from the fraternizing of different creeds, races and cultures. However, Kennedy seems skeptical of the UT plan, characterizing it at one point as prioritizing “race above all.” At another point, Kennedy calls race a “tie-breaker “ in UT’s admissions scheme, the same term that was used in Parents Involved to describe Seattle’s usage of race in its ultimately-doomed affirmative action plan.
The bottom line is that the justices are likely to rule 5-3 in favor of Fisher and strike down UT’s admissions scheme, which is going to put universities across the country back at square one. (A 4-4 tie would leave the status quo in place, thus allowing UT’s admissions process to continue as is.) The question is how far the Court will go not just in striking down the specifics of the UT plan but in limiting racial affirmative action across the board. Despite the fact that he invited the Court to do so in his brief, Rein maintains that he’s not asking the justices to overrule Grutter. But as Justice Sotomayor stated toward the end of oral argument, “You don’t want to overrule it, but you just want to gut it.” It looks like a gutting of Grutter is exactly what we’re headed toward. Of course, this is far too early for Justices Breyer, Ginsburg and Sotomayor (whose dismay at Fisher’s arguments was palpable)–but for the rest of the Roberts Court, this moment couldn’t come any sooner and is certainly nine years too late.
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.
If you haven’t been living under a rock for the past few months, you’ve probably heard that affirmative action is back on the docket of the Supreme Court this term. Even if you have been living under a rock, you’ve probably still heard about it. You may be sick of hearing about it already. (If so, stop reading.) While there is a whole hell of a lot that can (and will) be said about race-based affirmative action in the context of higher education–whether it’s about its consequences for certain minority groups, its main beneficiaries, its effectiveness or its future direction–I’m going to limit myself to an overview of SCOTUS’ recent affirmative action cases and try to point out some of the inconsistencies that the Court must resolve with Fisher v. University of Texas (to be argued this Wednesday), and then close out with a couple of thoughts on affirmative action in general.
Fisher arises directly from a pair of 2003 cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. Jennifer Gratz, a white applicant to the undergraduate school, argued that UM’s practice of granting underrepresented racial minorities automatic “points” in an admissions equation violated the Fourteenth Amendment’s Equal Protection Clause. Barbara Grutter, a white applicant to the law school, argued that UM Law’s practice of taking race into account in its admissions decisions, period, was also unconstitutional.
Now for a little bit of constitutional law: in Equal Protection challenges, a government policy that affords differential treatment between the races is examined under a standard known as “strict scrutiny.” Strict scrutiny means that the policy can only be upheld if the government can show two things: (1) a “compelling state interest,” and (2) “narrowly tailored” means to achieve this goal. Applying this standard, the Supreme Court ruled for Gratz–striking down the undergraduate school’s “bonus” points for underrepresented minorities–but against Grutter. It distinguished the two admissions schemes based on the fact that the law school merely considered race as one of many potential “pluses” and not as an automatic “booster”. Significantly, the Court accepted UM Law’s rationale that student body diversity itself is a compelling state interest “essential” to UM’s educational mission, because we learn to reject racial stereotypes and see members of different groups as individuals (rather than spokespeople for their entire race) when we encounter them frequently in our classrooms.* It then found that the law school had narrowly tailored its use of race in the admissions process. While quotas and automatic points unfairly insulated candidates from comparison with other applicants, taking race into account as part of a holistic process did not. Thus, UM Law’s policy was constitutional. The majority opinion, authored by Sandra Day O’Connor, represented a compromise between the reality of the obstacles still encountered by underrepresented minority students and the American ideal of a pure, colorblind meritocracy. But Justice O’Connor also wrote that she expected race-conscious admissions policies to be “limited in time” and Grutter to be obsolete in twenty-five years.
The Court is sixteen years ahead of schedule, but it looks ready to limit or even overturn Grutter now. In Fisher v. University of Texas, Abigail Noel Fisher argues that her rejection from UT violates the Equal Protection Clause. Under existing Texas law, the top 10% of students in every high school in the state receives automatic admission to state-funded universities. Race is not taken into account for this group of students, which is how UT gets 70-80% of its incoming class. For the rest of the applicants who do not make the 10% cutoff (now competing to be part of the remaining 20-30% of UT’s incoming class), race is taken into account as one factor among many, per the Grutter rule. Fisher, who is white, didn’t make the top 10% of her high school, and didn’t make the cut when her application was passed down to the pool where race was taken into consideration. She contends that the UT plan is unconstitutional because Texas doesn’t need to give underrepresented minorities a boost in the non-top-10% pile. UT’s race-neutral top-10% plan already results in a significant number of Latino and African American enrollees and makes UT’s classrooms plenty diverse enough without having to disadvantage Asian American and white applicants, Fisher claims. Any further consideration of race is just a smokescreen used by UT to admit a target number of Latinos and African Americans per year–in other words, a racial quota, which is expressly banned by SCOTUS. Texas, on the other hand, doesn’t see a problem with making its classes more racially diverse than the top 10% plan would allow and thus considers race as merely one part (“a factor of a factor of a factor of a factor”) of its holistic look at the non-top-10% applicants.
Fisher never directly argues that Grutter was wrong to accept diversity in higher education as a compelling interest, only that UT has already achieved adequate diversity through race-blind means and should stop there. (In other words, there is a “tipping point” of racial diversity after which you become less diverse by admitting too many students of color, despite the irony that white students are currently admitted at a higher rate under Texas’ non-top-10% holistic consideration than under the top-10% rule, thus… increasing racial diversity at UT.) But Fisher also wants the Court to consider clarifying or overturning Grutter altogether because courts have been too deferential to schools’ admission schemes–not truly questioning whether there is both a compelling state interest and narrowly tailored means–thus turning Grutter into a meaningless and unworkable standard.
On this argument, Fisher may very well find a majority of sympathetic Justices. It’s helpful to her that the perspective of the Court has changed dramatically in the past nine years, now that Sandra Day O’Connor has retired and Samuel Alito and John Roberts have moved in. Justices Alito and Roberts have made no secret of their disapproval of race-based affirmative action. Importantly, Roberts ruled in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1 that Seattle could not use race as a “tiebreaker” when assigning elementary students to schools. Justice Roberts refused to acknowledge that diversity was a compelling state interest at the grade school level, dismissing Seattle’s goals of reducing racial isolation and racially-entrenched housing patterns. Unlike Justice O’Connor, Roberts believes that society is already colorblind enough, and that all this talk about racism is what’s really perpetuating racism: “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Where things get sticky is when we try to make sense of Grutter and Parents Involved together. Parents Involved did not overturn Grutter; both are good law. Justice Roberts made sure to dispose of Grutter early on in his opinion, noting that it was limited to the realm of higher education and therefore did not apply to Parents Involved, which took place in the context of grade schooling. But this seemingly pat division raises inconsistencies when you look at what the Court is saying about diversity in each case: how can student diversity suddenly become compelling at the age of 18 and above when it hasn’t been for the last 12 years? Does it actually make any sense to say that elementary and high school students don’t need to be exposed to peers of different cultures and backgrounds, but then say that this exposure becomes of paramount importance when you leave for college, where you can then learn to reject racial stereotypes? Wouldn’t it be too late by then, and wouldn’t it make more sense to start teaching these lessons at an early age? Roberts wriggled his way out of this in Parents Involved by appealing to nebulous “considerations unique to institutions of higher education,” though he doesn’t bother to elaborate on how exactly this is different for grade school education. But either you believe that the state has a right to cobble together diverse classrooms in order to teach its young people acceptance and respect, or you don’t. It looks as though the Court’s conservative wing–Scalia, Thomas, Roberts and Alito–is eager to take the latter approach.
As ever, it may come down to Justice Anthony Kennedy, the current swing vote who will surely play as crucial of a role now as Justice O’Connor did in 2003. (Justice Elena Kagan has recused herself, so a 4-4 tie would mean that the Fifth Circuit’s decision upholding the UT plan stands, but if Kennedy votes with the four conservatives, UT loses 5-3.) And on the topic of affirmative action, Justice Kennedy seems to be a bit confused. Kennedy dissented in Grutter. He agreed with Justice O’Connor that diversity was in fact a compelling state interest, but found UM Law’s admissions scheme unconstitutional because he did not think it was narrowly tailored. In Parents Involved, Justice Kennedy again found that the challenged plan met the compelling interest test but not the narrowly tailored requirement. His concurrence broke with Justice Roberts on the question of whether diversity is a compelling educational goal at the grade school level (Kennedy believes it is), but then slammed the Seattle plan for categorizing students as “white” and “non-white” and not being narrowly tailored. Ultimately, his vote alongside the Court’s conservatives decided the case in favor of Parents Involved and the Seattle plan was struck down. What’s unclear, however, is exactly what kind of a plan Justice Kennedy would find narrowly tailored enough, and whether the University of Texas scheme will meet this unknown Kennedy standard. While diversity may survive as a compelling state interest as long as Kennedy hasn’t changed his mind, the UT plan might not–and if it doesn’t, schools across the country will be sent scrambling once again to devise a plan that does pass muster.** Diversity is nice, the Court seems to be saying, but we still haven’t figured out what the best way to achieve that is, or where we cross over the line into too much diversity.
As a final note, it’s worth remembering that colleges and grad schools use affirmative action in their admissions decisions in a multitude of ways that extend well beyond race. Justice O’Connor noted in Grutter that the University of Michigan’s admissions policy included “many possible bases for diversity admissions,” including languages spoken, community service performed and hardships overcome. Studies consistently show that female students get better grades in school and outperform men in universities, but colleges use gender affirmative action to try to admit a male-female student ratio as close to 50-50 as possible (since a student body that skews too much toward one gender will hurt campus social life and be “unappealing”). Schools use geographic affirmative action–if there’s 50 applicants from California and 50 applicants from New York with perfect GPA’s and perfect SAT scores and one applicant from North Dakota with an almost-perfect GPA and almost-perfect SAT scores, there’s a good chance that the North Dakotan is going to be admitted ahead of at least some of the perfect California and NY applicants despite the lower numbers. Athletes get preferences. Legacies get preferences (sometimes getting a boost in admissions chances by as much as a whopping 45%). And the list goes on and on. If a school has 50 applications from clarinet players and one from a piccolo player and it just so happens that the university orchestra’s one piccolo has just graduated, the piccoloist might get a bit of a boost. Amidst a pile of 50 applications from students who speak French as a second language and one from a student who is fluent in Croatian, the Croatian speaker might get some special consideration.
Despite all this, very few people ever kick up a big fuss about the injustices in the admissions process that discriminate against non-athletes, non-legacies, non-piccolo players, non-Croatian speakers and women, choosing instead to cry foul about race-based preferences. After all, Abigail Fisher isn’t mad about the male students or the children of UT alumni who might have cost her a shot at being a Longhorn. She’s mad about the African American and Latino students who got in before her, because it’s somehow easier to swallow the idea that students of color are the ones “stealing” spots they don’t deserve, and that they bring less to the college or grad school experience than other “preferred” students do. Of course, the existing system of affirmative action is not perfect, and there are a lot of ideas out there about what we can do to improve it.*** But the Supreme Court would do well to consider the realities of the holistic admissions process–which already have built-in considerations that benefit white/upper-class/male applicants and that have largely been left unchallenged in the courts–before it tries to convince us that we’ve reached our colorblind ideal, sixteen years ahead of schedule.
**Or they could switch to a completely race-blind admissions process in which top-scoring students constitute all of the incoming class. In the absolute worst-case scenario for supporters of affirmative action, Kennedy may agree with Fisher’s argument that it’s time to stop considering race in higher education, period, and overturn Grutter.
***Richard Kahlenberg, who I’ve linked to multiple times in this post, has done extensive research into both race-based and legacy affirmative action and advocates a switch to income-based affirmative action, an approach which, he argues, would benefit many underrepresented minority students as well as students from lower-income white and Asian American families.
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.
…get ready for more of this in the upcoming months:
“Certain precincts in this county are not going to vote for Obama,” said John Corrigan, clerk of courts for Jefferson County, who was drinking coffee in a furniture shop downtown one morning last week with a small group of friends, retired judges and civil servants. “I don’t want to say it, but we all know why.”
A retired state employee, Jason Foreman, interjected, “I’ll say it: it’s because he’s black.”
This could get ugly. One of the more interesting aspects of this general election matchup between President Barack Obama and the presumptive Republican nominee, Mitt Romney, is the fact that they both suffer from two very similar trust deficit problems with large swaths of the American public.
First, both Romney and Obama are seen, by significant portions of the public, as un-American. For Romney, this is due to his Mormonism, which 22% of Americans last year cited as a disqualifying factor for the presidency. For Obama, this is due to his father’s Kenyan heritage and his own race, as well as lingering doubts as to his birthplace resulting from repeated lies being perpetrated by some right-wing groups.
Secondly, both candidates supported, and subsequently passed, universal healthcare coverage laws in their respective constituencies: the entire country for Obama, the state of Massachusetts for Romney. And although Romney has vowed to repeal “Obamacare” as soon as he is elected President (which may become a moot point next month if the Supreme Court rules the law unconstitutional), the fact that he passed a virtually identical bill while governor certainly doesn’t help his credibility.
And it is this tension — between the candidates’ political weaknesses and their desire to attack those same perceived weaknesses in their opponents — that should turn what might otherwise be a rather boring general election contest into riveting political theater. It will be interesting to see Obama subtly play up his Christianity and Romney do the same with his, well, whiteness. In terms of who has the edge, I’d give Romney a slight advantage here. Despite the fact that Obama projects an infinitely “cooler” public persona, a significant portion of the American public is still reticent (or racist) enough about his identity to such an extent that Romney can exploit this discomfort for electoral gain. Conversely, while Obama can try to very gently remind Americans of Romney’s Mormonism (to be clear, I find it ludicrous and disgusting that anyone wouldn’t vote for Romney based on his Mormonism, but that probably won’t stop Obama from trying), he likely won’t score as many points with this as Romney can with the “un-American” verbal grenades he’ll be tossing at Obama.
On health care, however, I think the situation is flipped. Obama has the advantage here, as Romney has made Obamacare’s repeal a central cog of his presidential election campaign and yet passed basically the same thing in Massachusetts. His problem is one of credibility, especially given the massive attention being paid to the questions of whether he is sufficiently conservative and whether he has a real “core.” Obama, on the other hand, will likely be in a superior position, since it’s a law he passed as President and he is clearly interested in keeping it on the books. His weaknesses are twofold: 1) although individual elements of the law remain popular, the overall legislation is not; and 2) Obama has shown a surprising (and absolutely infuriating) tendency to back away from his own legislative achievements. If he wants to own Romney on the health care question, he needs to be unequivocal in his support for the health care bill he passed. Of course, Romney can then use this firmness to try to showcase how Obama’s out of step with the American public, but again, he’ll run straight into the credibility buzz-saw (since he passed the same thing at the state level).
This could end up being a very delicate tap-dance in the debates. Meanwhile, the TV ads will likely get really ugly, on both sides.