Thursday, September 22, 2011

Post No. 176: A Peek into the Affirmative Action Trial of the Century

© 2009 and 2011, the Institute for Applied Common Sense

Today marked the first day of trial in a landmark class action lawsuit in Los Angeles in the United States District Court for the Central District of California.

The plaintiffs, representing all African-American citizens who failed to receive the benefits of affirmative action programs and policies commenced in 1961, allege that the defendants, who were direct beneficiaries of such policies, kept all financial and other benefits, and failed to share them with the African-American population at large.

Federal Judge Lance Ito, having been roundly criticized for allowing the press and media into the courtroom during the O.J. Simpson criminal trial, chose to deny access to all press and media outlets. Last week, the media sought a writ of mandamus to force Judge Ito to permit them into the courtroom. The Ninth Circuit Court of Appeals out of San Francisco summarily denied the petition this past Friday.

However, certain friends of the Institute have acquired information, from sources who wish to remain anonymous, which provides us with some insight into this ground-breaking litigation.

The plaintiffs, led by black descendants of former Senator Strom Thurmond, claim that following the implementation of affirmative action policies, only a small percentage of African-American individuals benefited from set-asides and government contracts, preferential hiring, and admissions to institutions of higher learning.

They further argue that the policies and programs were designed to address centuries of slavery and disparate treatment under Jim Crow laws, and thus were to benefit the African-American community at large and not just certain individuals who fortuitously were in the right place at the right time.

Elliott Spitzer, counsel for the plaintiffs, met with reporters outside of the federal courthouse this morning before testimony began. “We plan to show two things. First, that the beneficiaries of the policies and programs at issue were overwhelmingly individuals who were already doing fairly well in the black community, and were primarily from the black middle and upper classes.

“Second, we plan to show that once these beneficiaries of affirmative action entered the workplace, established their respective businesses, entered Corporate America, or otherwise benefited from these programs, they failed to share the financial and societal benefits with those less educated and less fortunate. The poor state of the black community and the high incidence of poverty and crime are evidence of their failure to pass on the benefits.”

Spitzer called as his first witness (on a hostile basis), former Republican National Committee Chairperson Michael Steele. He traced Steele’s financial history since completing law school, and questioned him intensely about what Steele had given back to the African-American community, both financially and otherwise.

Spitzer elicited testimony from Steele to the effect that when Steele was in college and law school, he and his fellow black students reveled in black pride, and the need to empower the black community. Spitzer was able to show that once Steele graduated from school, he began his rapid ascent professionally, including moving to a predominantly Caucasian suburb, removed from the problems of inner-city blacks.

“Do you feel that you have any responsibility to Dr. King and other civil-rights leaders, to pass on your wealth and good fortune to those in the black community less fortunate, and at a minimum, live amongst poor blacks?”

The question drew long stares from the predominantly Hispanic jury, while they awaited Steele’s response. The Judge adjourned the trial for the day before Steele could answer.

In speaking with Rod Blagojevich, counsel for the defendant beneficiaries of the programs and policies, he noted, “There is no legal basis upon which this suit can be brought. There is no legal requirement that the beneficiaries of affirmative action share their good fortune with other members of the black community, or engage in conduct beneficial to the community.”

Spitzer concedes that there is no legal precedent for his position, but argues that that there is an equitable and moral basis for his clients’ suit. He contends that the legal doctrine of quantum meruit is applicable, in that the defendants have been unjustly enriched.

Spitzer further claims that since Jim Crow was not outlawed until 1962, it is too soon for those fortunate enough to have received the benefits of remedial programs and policies to pursue their selfish desires and needs. He suggests that perhaps 150 years should pass before the beneficiaries are relieved of their ethical and moral responsibilities to the other members of the black population who were not fortunate enough to receive the benefits.

Judge Ito’s prior rulings in unrelated cases may provide some insight as to his leanings. He previously expressed that in his opinion, both Jim Crow laws, which established segregation by law, and the Civil Rights cases and legislation, which established integration by law, were inappropriate exercises of governmental power, despite strained legal arguments to the contrary. His position appears to be that the decision to associate, or not associate with, others should be a personal decision, no matter what the environment, and that enforcing or addressing segregation or integration in any manner should be left to the hearts and minds of individual citizens, and are not the province of governmental entities, no matter the branch.

Furthermore, he contends that governmental interference in any way actually hurts race relations.

The Justice Department, under the Obama Administration, has chosen not to file briefs in support of, or in opposition against either position. According to a Justice spokesperson, the President has not contacted Justice regarding his position. Observers note that during the Presidential campaign then-candidate Obama (as well as the First Lady) were referred to as affirmative-action beneficiaries who lacked the academic skills and sophistication warranting their admission into the high-caliber educational institutions where they matriculated.

The trial is expected to last 2 years, longer than the O.J. Simpson trial over which Judge Ito presided.


  1. A good piece IC, ammunition for both right and left perhaps, but informative as always.

    The volume of anti-discrimination laws surely indicates the degree of civilization a state can boast, if shown next to the levels of discrimination against worthy minorities that exists.

    In my own case, in rural England 60 years ago, there was plenty of gentle discrimination against race ,colour, gypsies, poverty, and so on. But little idea that legislation was needed to counter the injustice. And unjust this discrimination certainly was even though the bulk of these minorities earned their low status.

    Individuals could earn their way out of this status. They were not encouraged to develop 'pride' in their minority status, and violence between groupings was very very rare. This is exactly the case in Greece to-day.

    Steele's action in moving to better environments as he could afford them was questioned in court?? Tell me i have got this all wrong. If Steele is greedy and does not help the poor in the area of his roots, he is a shit. For moving away he is sensible.

  2. Thanks much CorfuBob; most significantly for your recognition that we provided ammunition for both the left and the right, which we generally strive to do, since, as we often say, "There are more than 2 or 3 ways to view any issue; there are at least 27.™”

    Some of the names we plugged into this parody are not recognizable by citizens of other countries. We discussed the possibility that some of our readers from other countries might not appreciate this, but chose to post this in news reporting format anyway, thinking that we would clarify the issue if necessary. Although the characters are real, there is no trial or litigation regarding this aspect of affirmative action.

    Your characterization of the theoretical duality of Steele's character is thought provoking.

  3. I agree with Bob, good piece Inspector.:-)
    There are so many things that need to be changed in reference to affirmative action (not limited to the US). The problem is that only a few people do benefit from those policies and a lot of people are left behind. There is plenty of room for improvement, but that will cost plenty and I doubt that we'll see positive changes in the future. Looks more to me that it's getting worse.

    In order to achieve a reasonable level non-discrimination I would change a few things. Instead of teaching religion in school I would teach Diversity/Tolerance and let kids know early on that racism is taught/learned and not inherent! Give everybody access to higher education and health-care! Most of all, reduce the existing income inequalities!!!!!

  4. I can't imagine an advanced society that follows or teaches religion, or teaches 'belief' instead of 'question'. When cash is not the only reward, and when extreme reward is seen as destructive we will be on our way to civilization, don't you agree?

  5. Wsteffie. It's good to have you back. We realize that you are very busy these days and appreciate ANY time that you can spend with us in our forum.

    As usual, you have raised many relevant issues in a relatively pithy comment. The reduction of income inequities probability stood out for our purposes. You just inspired us to generate another post.

    See you soon.

  6. We were struck by Wsteffie's reference to "income inequities," and you also referenced "extreme reward." Almost any time that someone even remotely approaches that subject matter here in the U.S., certain factions immediately speak of our potential slide into socialism. (For our readers not familiar with the two of you, Wsteffie lives in Germany and Bob is a British expatriate now living in Greece.)

    This is a subject which we plan to explore shortly in the context of personal responsibility.

    Thanks also for your continued participation in our forum.

  7. I wholeheartedly agree with you Bob! From the looks of it I'd say that we've lost track and are coming off the road of civilisation.

    Income inequities are the root cause of lots of today's social problems. Funny how one word can have a different meaning in another countries. While "Socialism" is more or less viewed as "Marxism" in the US over here the association is towards the Latin origin of the word: societas.

  8. For much of the history of humankind, there have been only two socio-economic classes: the rich and the poor. The middle class is a relatively new phenomenon, and primarily in western countries. There are still many countries on earth where only the two exist.

    What is troublesome for those of us who, during our life times, considered ourselves to be "middle class," is that we are finding it more difficult to make ends meet. However, we developed a set of expectations, tastes, desires, and wants when times were better. We became "addicted" to things and conditions which went beyond basic needs. Furthermore, mass electronic media and advertising contributed to this different level of expectation. We saw how the upper class lived, and how we could possibly live.

    This is very complicated stuff. As a general rule, it is difficult for a class to handle a reduction or lowering of its expectations. We are so accustomed to getting more, being better, and thinking that our kids would do better than their parents. That may not be the case in the coming years.

  9. ‘Spector,

    Did we really expect any other result from the collectivist and entitlement mentality which has been drilled into our collective consciousness (pun intended) for at least two generations? Of course any bureaucracy such as A.A. is going to generate inequity – just as does unleashed corporatism at the opposite end of the economic spectrum. Every other assemblage of governmental flacks with virtually no oversight engages in it – why wouldn’t we expect the same of Affirmative Action? Then the presumed beneficiaries act “all surprised” when they find that – gasp! – the benefits have not been equally distributed. Who’d have seen THAT comin’?

    Now: how about a new discussion regarding the “Occupy Wall Street” movement? My guess is that this issue will not soon go away – and it has the potential to become a “perfect storm” the world over. What is your take on it?

    Oh, and Steffie: no matter what you have been told, religion is no longer taught in American public schools -- and has not been taught since the 1960s when the atheists and the ACLU had their way in court. Many people in my country point to this episode as the beginning of such problems as the aforementioned rampant collectivism – in other words, greed and the entitlement mentality (at all levels) -- which are destroying America today. Fortunately they have not yet forbidden us from attending church services, but if lawsuits such as the one described by the ‘Spector can be successfully introduced into the U.S. court system, then there exists no limit to how it can be successfully abused.

    The Independent Cuss

  10. Thanks, as always, Independent Cuss for sharing your perspective. Our intended focus (in this imaginary, satirical piece) was not so much on the machinery or bureaucracy of affirmative action on the delivery side, but rather the recipients of the benefits and whether they should somehow share more of the benefits with others of their race.

  11. 'Spector,

    Respectfully, I fail to see how the former issue can be separated from the latter. However, I shall demure from further belaboring of this point as TVFOMTW is, after all, your blog.

    The Independent Cuss

  12. Independent Cuss:

    Are you suggesting that if an agency or a branch of the government institutes policies and programs to address past conduct on the part of its citizens, which it now recognizes as inappropriate or unfair, the recipients or beneficiaries of those programs, whose choose not to share the benefits of policies and programs, are greedy, and have formed an entitlement mentality, and that the combination of the government conduct and the recipient conduct act in concert to destroy countries?

  13. ‘Spector,

    Gee, it sounds REALLY bad when YOU say it!

    But yes . . . pretty much the same as the mechanics of privilege/entitlement operate between government and corporations – indeed, all special interests in general.

    The Independent Cuss

  14. In May of 2008, the Sichuan earthquake occurred in China, and 68,712 people died, and more than 4.8 million were rendered homeless. Of the dead, thousands were school age children who died when their poorly constructed schools collapsed.

    The Chinese government made an effort to compensate the grieving parents for their losses. (The executives of the construction companies who built the schools were beheaded.) Many of the parents felt unsatisfied and continued to press for additional measures on the part of the government. (BTW, the government used some pretty heavy handed tactics, including arrest, to shut them up.)

    Are you suggesting that the parents might be labelled as greedy and suffering from the privilege / entitlement disease, and that the combination of the governments compensation efforts and the receipt of the benefits by the parents will lead to the destruction of China?

  15. 'Spector,

    My apologies. You see, I thought that your previous remarks were submitted facetiously, and answered them in kind; apparently, such was not the case.

    No, I don’t think that any one singular thing is going to bankrupt any government; rather, to do so requires a “perfect storm” of greed, misplaced idealism, ineptitude, cowardice, reckless bravado, a disillusioned (hence jumpy and unpredictable) electorate . . . and yes, a sense of both privilege and entitlement.

    Frankly, I have always been a bit “on the fence” regarding Affirmative Action. I can see it having done much good, and much harm – much as does every other bureaucracy, public or private. I simply was not surprised when some expressed outrage at the sense that they had been shortchanged by it; that was all that I intended to state and all (or so I thought) that my earlier comments inferred. I really didn’t wish to enter the “A.A. is good for America/A.A. is not good for America” fracas . . . and I honestly didn’t think that you did, either.

    I shall refrain from further commentary since my communication skills obviously seem to be failing me today.

    The Independent Cuss

  16. This article on affirmative action appeared in the July 25, 2009 edition of the electronic version of the New York Times. It provides some interest insight by someone who claims to have been a beneficiary of affirmative action efforts.


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