US Agriculture and the Dependence on Undocumented Workers

Agriculture is one of humanity’s oldest and most important technologies.  For most of our history crop production was characterized by a high concentration of labor.  It has been said that when we first began to organize into collective entities with industrial-scale grain production, the labor was so intense that workers essentially had to be enslaved by those in power to keep them from running away.  Humans, like plants and animals, had to be domesticated to accommodate the demands of agriculture.  Technology would improve over time and lessen the burden, but it would require the twentieth century inventions of fossil-fuel-driven machines to virtually eliminate manual labor.  Crops like corn can be planted and harvested with machines doing almost all the work.  However, there still exist crops that have resisted full automation and continue to require difficult and unpleasant labor.  Consider the humble tomato plant.  It produces numerous fruit over a period of several months, so it must be harvested continuously as the individual tomato reaches the right stage for picking.  This involves a lot of unskilled labor.

If owners of agricultural land had to pay a market price for labor, the cost of the produce might become too high to find buyers.  The traditional response of landowners was to resort to some form of servitude such as slavery, serfdom, or sharecropping.  Wealthy countries such as the OECD nations have high labor costs making labor-intensive agriculture relatively inefficient.  Since forms of servitude are generally highly restricted now, the only option is to seek guest workers willing to work at the lowest rate.  Often, this still does not provide cost-effectiveness and nations must decide if they wish to subsidize some of their agricultural products (or place tariffs on foreign produce) to allow them to compete in the marketplace.  No country wishes to be totally dependent on imported food from low-wage nations.  Consequently, some form of accommodation must be made to keep the price of desirable products tolerable.

Although, some of the founding fathers of the United States liked to think of it as a nation of small farmers, the most efficient early agricultural model involved large tracts of land worked by slaves.  After a huge amount of new fertile land became available after the Louisiana Purchase, the only people who could clear that land and put it into productive service were the large slaveholders.  This further entrenched the plantation model for agriculture in the southern regions.

The plantation system in the South produced cotton for the international market and provided the United States with the funds it could use to develop its other industries.  Not all the wealth became available to the plantation owners.  The North controlled credit and international transportation which siphoned off a considerable fraction of the profit.  The North also imposed high tariffs on imported goods to protect its fledgling industries.  Since the South devoted nearly all of its resources to producing cotton, the majority of its other needs had to be purchased from the North at above international market prices, further enriching the North at its expense.  The South has been instinctively in favor of free-market trade and has been mad at the North ever since.

After the end of slavery, large landowners tried to maintain the plantation model by various schemes to create indentured labor.  The South could resort to cheap black labor purchased from prisons, or they could reinvent the serf model and call it sharecropping.  Technology and mechanization would eventually change even that region.

There remain agricultural pursuits that still require difficult and intense labor.  These generally involve crops that must be picked by hand.  Michael Greenberg produced an interesting and revealing article on the state of agriculture in the Central Valley of California.  It was titled In the Valley of Fear and appeared in the New York Review of Books.  What is clear from Greenberg’s presentation is that the plantation model is still alive and well with undocumented immigrant labor taking the place of slaves.

“The revenue from all the crops harvested here and elsewhere in California is $47 billion a year, more than double that of Iowa, the next-biggest agricultural state. Most of this revenue benefits a few hundred families, some with as many as 20,000 or even 40,000 acres of land.”

“Plantations on the west side of the Valley are so huge that managers keep track of workers by flying over the fields in planes. Computers monitor the release of water, which is delivered to the plants with an intricate system of pipes and valves. ‘It’s prisons and plantations, nothing else,’ Paul Chavez, the son of Cesar Chavez, who co-founded the United Farm Workers union (UFW), told me. ‘You can’t even get an education in these places. According to the state of California’s own survey, in farmworker towns barely 30 percent of school teachers are accredited’.”

In the 1950s one could still find 10-15% of whites working the fields with the remainder being a mixture of minorities.  However, the nature of the work is such that now only the most desperate for employment will perform it.

“Today, at least 80 percent of farmworkers are undocumented Mexicans, the majority of them Mixteco and Trique, indigenous people from the states of Oaxaca, Sinaloa, and Guerrero—the poorest regions in Mexico—who speak no or very little Spanish, much less English. Most of them have been working the fields for at least a decade, have established families here, and live in terror of la migra, as Immigration and Customs Enforcement (ICE) is called, and instant deportation or imprisonment that would wrench them from their children.”

It has often been claimed that undocumented migrants take jobs away from citizens.  Greenberg provides this perspective on that issue.

“In response to the argument that immigrants steal jobs from Americans by undercutting their wages, the UFW set up a website offering citizens and legal residents agricultural jobs anywhere in the country through state employment services. This was in 2010, during the Great Recession. The website received about four million hits, out of which around 12,000 people filled out employment forms. Of these, a total of twelve citizens or legal residents actually showed up for work. Not one of them lasted longer than a day. According to a Los Angeles Times report, Silverado, a farm labor contractor in Napa, ‘has never had a white, American-born person take an entry-level gig, even after the company increased hourly wages to $4 above the minimum.’ A wine grower in Stockton couldn’t lure unemployed citizens for $20 an hour.”

There are reasons besides money that make agricultural labor uninviting for those who might have other options.  Greenberg visited a tomato field and observed the picking.

“Because of the heat, the workday lasted from 5 to 10 AM, when temperatures rose to 113 degrees. The sun beat down, but everyone was covered from head to foot in several layers of clothes: cracked baseball caps anchored in place by hoodies and homemade scarves, sweatshirts over sweatshirts, two pairs of pants, heavy socks and boots; only eyes and cheeks and fingers were exposed. This was to protect against pesticides. Cancer rates among pickers throughout the Valley are high. The soil is so hardened by chemicals that it comes up in the hand in dry, pale stone-like clumps. In the heat the chemicals rise potently from the earth; within an hour I tasted them burning in my mouth.”

However, there are limits to what such workers will endure.  They do not allow their children to be caught up in the same system.

“Fruit and vegetable picking is a one-generation job—farmworkers I spoke to neither wanted nor would allow their children to follow them into the fields. The heat and physical toll, combined with the feudal power of the growers, make it preferable to work in an air-conditioned hotel or packing house, where you can stand upright and be free of pesticides for the same low wages.”

In order for owners to maintain a dependable supply of pickers there is a need for new illegal immigrants to replace those who are deported or are no longer able to do the job. 

“Since 2005 more Mexicans have been leaving the US than arriving. And this isn’t only because of a crackdown at the border. In 2000, when the border was far more porous than it is now, 1.6 million Mexicans were apprehended trying to cross into the US. In 2016 the number was 192,969.2 Ed Taylor, an economist at UC Davis, estimates that the number of potential immigrants from rural Mexico shrinks every year by 150,000. This can be partly explained by improved economic conditions in northern and central Mexico, which have dimmed the allure of minimum-wage labor in the US, and partly by the cost and danger of venturing across the border. If you do make it into the US, payments to a smuggler can keep a minimum-wage laborer in debt for life.”

The supply of pickers has not been keeping up with demand.

“As things stand, there is a labor shortage the magnitude of which hasn’t been seen in at least ninety years. It has prompted growers to rip out labor-intensive fruits like table grapes and plant almond trees, which require relatively few workers. Housing costs, especially in the Coastal Valley, have made it even harder to attract and keep workers. In recent years, millions of dollars’ of unpicked crops have been plowed under or left to rot in the fields.”

The growers would prefer that traditional system of employing migrants—legal or not—could continue.  But in the current environment where the Trump administration is attempting to deport everyone it legally can and make life so miserable for the rest that they will choose to leave on their own, that is highly unlikely.  This system could be replaced by a viable guest worker program, but that is complicated by the existence of the current, largely undocumented, workforce.  Could such a program recognize their need to maintain their jobs, income and families, or would it require that they all be deported to make way for the new system?  There is an existing program designed for “emergency” needs, but growers do not see it as a viable solution.

“Under the current guest-worker law, which is intended to address emergency labor shortages, guest workers are expensive: employers must pay for their travel from and back to their country of origin and provide housing during the term of their contract, which cannot exceed one year. The law is designed to discourage businesses from engineering a labor surplus by importing unlimited numbers of Mexicans and undercutting workers who already live in the US, as growers did under the Bracero Program (whose name comes from the Spanish word for manual laborer) from 1942 to 1964, in response to the agricultural labor shortage during World War II.”

That law seems to recognize the replacement and deportation of all current undocumented workers as an unacceptable solution.  There is a bill before Congress, that has not yet gained the number of supporters needed to pass, that illustrates the current administration’s approach to these issues.

“A bill sponsored by Representative Bob Goodlatte of Virginia seeks to weaken—and in some instances abolish—employer requirements, such as mandatory housing and transportation, in order to create a vast pool of two million or more regulated guest workers. Passage of the bill, its sponsors believe, will make it economically feasible to do away with hiring undocumented workers from Mexico and to deport virtually every one of them already living in the US.”

This passage describes the conditions of employment envisaged under the Goodlatte bill.

“Under the Goodlatte bill, guest workers could be hired for up to three years and would be paid the minimum wage in the state they are brought to—$7.25 in Texas, $8.25 in Florida, $10 in Arizona, $11 in California, all states that use a substantial number of farmworkers. Crucially, they would not be allowed to bring their spouses or children. And they could only work for the contractor who hired them. If they experienced wage theft or maltreatment on the job, they would have no recourse to seek justice or find work elsewhere. If fired, they would be immediately deported, at their own expense. If they fled, they would be hunted as outlaws. At least 10 percent of their wages would be withheld until the contract expired, to make sure that they left the country.”

Technically, such conditions would qualify as indentured servitude, but it should more properly be recognized for what it is—a modern form of slavery.  It is disturbing to consider that this nation was born accepting slavery as a viable social option, and now, after about 250 years of supposed social progress, there are those who would choose to return to such a system.  We were once a better nation than that.

The undocumented immigrants who have been working our fields were essentially invited here by the growers willing to hire them.  Any solution should allow those who have been good residents, paid taxes, and raised families to stay on.  Any guest-worker program should protect the rights of both existing workers and guests to tolerable conditions and provide recourse to legal means for redressing grievances.

The interested reader might find the following articles informative:

Illegal Immigration: Hysteria over a Nonexistent Problem

Early States, Capitalism, and the Domestication of Humans

How Climate Change Will Shrink the Habitable Planet

Many people can observe for themselves that their climate is changing and growing warmer even if they don’t believe the effect is due to human activity.  However, most are yet to experience a sense of urgency appropriate for what the future holds.  Bill McKibben attempts to convey the seriousness of climate change to those who still haven’t got the message in an article in The New Yorker: How Extreme Weather Is Shrinking the Planet.  It was titled Life on a Shrinking Planet in the paper version.  He begins with this lede.

“With wildfires, heat waves, and rising sea levels, large tracts of the earth are at risk of becoming uninhabitable.”

The current world population is estimated at about 7.7 billion.  Those who make such projections anticipate population growth leveling off leaving us with a peak population of around 10 billion sometime this century.  That means a lot more people are coming.  If habitable space is declining, there will be problems.

The most obvious source of a shrinking habitat is the rise in sea levels that are observed.  The potential rise is astounding.  If the Greenland ice cap should melt sea levels would rise by 20 feet.  If all of Antarctica melts as well, that would add another 200 feet.  These eventualities would take a long time to occur, but scientists are eager to make projections of the seal level rise that could occur by the end of this century, and they are significant.  Jeff Goodell addressed these estimates in his book The Water Will Come: Rising Seas, Sinking Cities, and the Remaking of the Civilized World and found estimates of peak possible sea rise in that period between 3 and 15 feet.  The more scientists observe the effects of global warming, the more worried they become about the rate of ice melt.  Even if only 3 feet is encountered, Goodell claims that will be disastrous.

“Globally, about 145 million people live three feet or less above the current sea level.  As the waters rise, millions of these people will be displaced, many of them in poor countries, creating generations of climate refugees that will make today’s Syrian war refugee crisis look like a high school drama production.”

McKibben chimes in to point out that people are already on the move because of rising sea water.  We don’t have to wait long for the effects to become quite severe.

“Each year, another twenty-four thousand people abandon Vietnam’s sublimely fertile Mekong Delta as crop fields are polluted with salt.”

“In one week at the end of last year, I read accounts from Louisiana, where government officials were finalizing a plan to relocate thousands of people threatened by the rising Gulf (‘Not everybody is going to live where they are now and continue their way of life, and that is a terrible, and emotional, reality to face,’ one state official said); from Hawaii, where, according to a new study, thirty-eight miles of coastal roads will become impassable in the next few decades; and from Jakarta, a city with a population of ten million, where a rising Java Sea had flooded the streets. In the first days of 2018, a nor’easter flooded downtown Boston; dumpsters and cars floated through the financial district. ‘If anyone wants to question global warming, just see where the flood zones are,’ Marty Walsh, the mayor of Boston, told reporters. ‘Some of those zones did not flood thirty years ago’.”

A hotter world is close to creating zones where the combination of high temperature and high humidity will render them uninhabitable.

“About a decade ago, Australian and American researchers, setting out to determine the highest survivable so-called ‘wet-bulb’ temperature, concluded that when temperatures passed thirty-five degrees Celsius (ninety-five degrees Fahrenheit) and the humidity was higher than ninety per cent, even in ‘well-ventilated shaded conditions,’ sweating slows down, and humans can survive only ‘for a few hours, the exact length of time being determined by individual physiology’.”

Even higher temperatures are common on the planet, allowing the deadly threshold to fall to lower levels of humidity.

“As the planet warms, a crescent-shaped area encompassing parts of India, Pakistan, Bangladesh, and the North China Plain, where about 1.5 billion people (a fifth of humanity) live, is at high risk of such temperatures in the next half century. Across this belt, extreme heat waves that currently happen once every generation could, by the end of the century, become ‘annual events with temperatures close to the threshold for several weeks each year, which could lead to famine and mass migration.’ By 2070, tropical regions that now get one day of truly oppressive humid heat a year can expect between a hundred and two hundred and fifty days, if the current levels of greenhouse-gas emissions continue.”

Temperatures are rising faster near the poles than at the lower latitudes leading to severe effects in Alaska.  Villages were often built on the coast to take advantage of the sea ice, but now the sea ice disappears and leaves the coast vulnerable to erosion during storms.  Entire villages must be moved further inland.  The rising temperatures also increase the melting of permafrost. Buildings were generally constructed on the assumption that permafrost was permanent.  Now that it is demonstrably not permanent, bad things are happening.

“As the permafrost melts, it releases more carbon into the atmosphere. The thawing layer cracks roads, tilts houses, and uproots trees to create what scientists call ‘drunken forests.’ Ninety scientists who released a joint report in 2017 concluded that economic losses from a warming Arctic could approach ninety trillion dollars in the course of the century, considerably outweighing whatever savings may have resulted from shorter shipping routes as the Northwest Passage unfreezes.”

Rising temperatures will also make it more difficult to feed those extra 2.5 billion people who are expected to arrive.  Among other factors, the fundamental process of photosynthesis is strongly temperature dependent, falling off rapidly at higher temperatures.  This source provides information.

“At medium temperatures, between 50 and 68 degrees Fahrenheit, or 10 and 20 degrees Celsius, the photosynthetic enzymes work at their optimum levels, so photosynthesis rates gauge high.”

“At temperatures above 68 degrees Fahrenheit, or 20 degrees Celsius, the rate of photosynthesis decreases because the enzymes do not work as efficiently at this temperature. This is despite the increase of carbon dioxide diffusion into leaves. At a temperature above 104 degrees Fahrenheit – 40 degrees Celsius – the enzymes that carry out photosynthesis lose their shape and functionality, and the photosynthetic rate declines rapidly.”

McKibben provides this observation.

“The Potsdam Institute for Climate Impact Research concluded in a recent study that, as the number of days that reach eighty-six degrees Fahrenheit or higher increases, corn and soybean yields across the U.S. grain belt could fall by between twenty-two and forty-nine per cent.”

Rising temperatures increase the amount of water and energy in the atmosphere.  This will lead to weather events that are more powerful and more destructive.  While average global rainfall is likely to increase, there is no way of knowing where and when it will fall.  We are now experiencing a combination of drought conditions and extreme flooding.  That is expected to get worse, but the locations of those events need not remain the same.

“As some people flee humidity and rising sea levels, others will be forced to relocate in order to find enough water to survive. In late 2017, a study led by Manoj Joshi, of the University of East Anglia, found that, by 2050, if temperatures rise by two degrees a quarter of the earth will experience serious drought and desertification. The early signs are clear: São Paulo came within days of running out of water last year, as did Cape Town this spring. In the fall, a record drought in Germany lowered the level of the Elbe to below twenty inches and reduced the corn harvest by forty per cent…We’ve already overpumped the aquifers that lie beneath most of the world’s breadbaskets; without the means to irrigate, we may encounter a repeat of the nineteen-thirties, when droughts and deep plowing led to the Dust Bowl—this time with no way of fixing the problem.”

Perhaps the most significant result of global warming will be conflict.  Rising sea levels, scarcity of food and water, storm damage, and desertification will all create climate refugees.  Hundreds of millions of people will be forced to move seeking a viable place to live.  Humanity’s record for dealing with refugees does not foster optimism.  Mass murder is the more likely outcome.

Human civilization will likely endure, but it will enter an uglier, more brutal phase.

The interested reader might find the following articles informative:

Climate Change: The Water Will Come by Jeff Goodell

The Water is Coming, and Venice, New York, and Miami are Waiting….and Waiting

Global Warming and the Resurrection of Dormant Diseases

Global Warming and the Holocaust’s Warning: It Can Happen Again

Global Warming Comes to Alaska

Ground Zero for Sea-Level Rise: South Florida

Affirmative Action and Diversity: Asian Americans and Fairness in College Admissions

In October of this year, a US District Court began hearings on a suit filed on behalf of Asian Americans who believe that Harvard (and other elite universities) discriminates against them because of their race.  This is a complex issue with the potential to eliminate the vestiges of affirmative action in college admission.  If the suit is successful, it is likely that white and Asian American students would gain higher admission rates at elite schools at the expense of African-American and Hispanic students.  Hua Hsu produced an interesting assessment of the issues involved for The New Yorker.  His article appeared in the paper version as School Colors, and online as The Rise and Fall of Affirmative Action.

Asian Americans tend to be left-leaning in their politics, and when surveyed, announce that they are in favor of affirmative action.  And, in fact, older Asian Americans well remember riding on the vehicle of affirmative action to overcome discrimination they experienced in years past.

“For previous generations of Asian-American activists, affirmative action was a key component in the struggle for multiracial justice. In the late eighties, the Department of Education investigated a series of claims alleging that Berkeley, Harvard, and other élite institutions had put a limit on the number of Asian-Americans admitted. The claims had been lodged by young, largely progressive Asian-American activists, for whom affirmative action was the solution to the problems they were identifying, not the cause.”

“In most cases, the students’ suspicions of unfairness were well founded, and Asian-American populations at these schools began to grow. This history captures the almost paradoxical position of many Asian-American supporters of affirmative action.” 

It is therefore both ironic and contentious that younger Asian Americans are teaming with conservative activists, led by Edward Blum, who wish to eliminate affirmative action and any other racial considerations in society.  Blum organized students and others into an organization called Students for Fair Admissions (S.F.F.A.) to bring the suit against Harvard.

“If Blum’s suit is successful, the effect will be felt far beyond Harvard. It will limit the freedom that academic institutions have often had in pursuing their unique educational missions. The lawsuit, and Blum’s efforts to change the cultural conversation surrounding diversity and discrimination, could end affirmative action in higher education as we know it.”

Are Asian Americans being discriminated against?  Hsu produced these data.

“S.F.F.A. alleges that Harvard attempts to curate the racial breakdown of each incoming class. In order to achieve classes that, in recent years, have been roughly half white, twenty per cent Asian-American, fifteen per cent black, and twelve per cent Hispanic…”

This source indicates that Asian Americans make up about 5% of public-school students and 23% of those admitted to Harvard’s 2017 freshman class.  Is that a sign of discrimination?  The argument for a higher admission level must be based on a narrow definition of what defines “merit” in college admissions.  The plaintiffs argue that admission should be based on grades and performance on standardized tests only.  The assumption is that Asian Americans work harder than others, including the white students, and they deserve an even higher acceptance rate.  Under that constraint, admissions of both whites and Asian Americans would likely increase at the expense of other minorities, including poor whites and poor Asian Americans.  However, it is well-known that tests like the SAT and ACT are burdened with cultural biases that favor those with higher family incomes.  Is it in the best interests of a university, and of society in general, to create a student environment that favors the wealthy and culturally endowed? 

Do these angry Asian Americans have a legitimate beef or are they merely over-entitled students?  And are they merely tools in a conservative plot to eliminate affirmative action once and for all?  It is notable that Trump’s Justice Department supports the suit against Harvard, apparently seeing this as an opportunity to eliminate affirmative action for the less-entitled African-American and Hispanic minorities.

To address the issues raised it is necessary to review the history of affirmative action and that of prior court rulings. 

“…the first time the government used the term [affirmative action] in relation to race was in March, 1961, when John F. Kennedy signed Executive Order 10925, which required government contractors to ‘take affirmative action’ to help realize the nation’s goal of ‘nondiscrimination’.”

“The premise of affirmative action was that, for African-Americans, the status quo was innately negative. To act affirmatively was to acknowledge the history of denigration and inequity that continued to define black life, and to come up with ways in which the future could be different.”

The intention was good, but a coherent implementation plan never developed.  It would be the courts that stepped in and defined what affirmative action could and could not mean.  Hsu discusses this history, but a more concise treatment can be found in an article by Noah Feldman in the New York Review of Books: Justifying Diversity.

The Fourteenth Amendment would form the basis for most litigation regarding affirmative action.  Adopted in 1868, it was mainly focused on ensuring that the freed slaves would be considered citizens (Citizenship Clause) and that they would have the same rights as any other resident of the nation (Equal Protection Clause).  Any actions to compensate African Americans for centuries of abuse and discrimination became an easy target for court litigation as an infringement on the rights of other groups, particularly whites.  The critical ruling with respect to affirmative action in university admissions came in Regents of the University of California v. Bakke (1978).

“The case was brought by an unsuccessful white medical school applicant who claimed that affirmative action violated equality under the Civil Rights Act and the equal protection clause of the Fourteenth Amendment. His challenge was part of the fascinating—and in many ways horrifying—revisionist backlash against the integrationist jurisprudence of the Warren Court. In a series of close decisions, conservative majorities of the Burger and Rehnquist Courts struck down various types of affirmative action as violating the equal protection rights of whites.”

“These decisions undermined the rationale for affirmative action, which was, its advocates generally maintained, to make up for slavery and segregation by ensuring that African-Americans (and sometimes Latinos) would be able to obtain professional opportunities that had historically been denied them.”

The court had four justices who believed the actions taken by the University of California were legally acceptable as a response to past acts of discrimination.  Among those was Thurgood Marshall who provided this comment.

“…the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

Four other justices were ready to declare the actions violated equality protections.  The ninth justice, Lewis Powell Jr., offered a compromise between the opposing views.  Selection explicitly on the basis of race would not be allowed, but race could be considered as a factor a university could use in assembling a diverse student population that it considered necessary to meet its educational goals.  Curiously, Powell arrived at this compromise after reading a brief filed in the case by Harvard University.

“Powell famously got the idea of using diversity as the rationale for affirmative action from the amicus brief filed by Harvard University and flagged for him by his law clerk.  The most famous line from the brief, included in Powell’s opinion, read: ‘A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer’.”

Although a decision was reached, the compromise did not satisfy either those who insisted that affirmative action could be based on remediation of past abuses, or those who were against it under any circumstances.  It would only be in 2003 that Sandra Day O’Connor would write an opinion on diversity that the majority of the court would agree with.

“Powell had emphasized that courts should defer to universities’ stated educational mission. O’Connor preserved the appeal to diversity, but subtly shifted the argument away from the educational benefits of diversity and toward its broader social effects among the graduates of elite institutions. Invoking both businesses and the US military, she insisted that ‘in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity’.”

While these decisions allow race and ethnicity to be factors in university selection, they do not provide much guidance in terms of how this should be done. 

“In reality, elite institutions do seek to evaluate applicants individually. Yet they simultaneously manage to produce demographically balanced classes according to established proportions of race, geography, and wealth, which do not necessarily correspond to the demographics of the larger population. The balance typically differs only a little from year to year and even less when one compares the classes admitted by all schools of similar standing in any given year.”

“Those consistent results would be highly improbable if the admissions officers were merely evaluating individual applicants on a ‘holistic’ basis, without attention to overall numerical goals. The balanced classes are sometimes defended (although not by Harvard) as creating a ‘critical mass’ of minority students. Presumably, the similarity across institutions satisfies the universities’ desire to include students of many backgrounds while simultaneously protecting them from the criticism that they got the balance wrong by appealing to shared institutional norms.”

The fact that elite universities tend to arrive at fairly consistent fractions of minorities in their admission classes year after year suggests that there might be some form of algorithm at work that “balances” out the numbers.  Any hint of such balancing would provide those determined to eliminate affirmative action entirely with justification for supporting the Asia-American suit against Harvard.

Harvard could argue that its conception of the ideal admissions class to meet its perceived educational goals might arrive at fairly consistent distributions of minorities.  Feldman pores over Harvard’s statements about its intentions and provides this description of the types of interactions between students for which it is aiming.

“The interactions ‘ensure that our students truly engage with other people’s experiences and points of view, [and] that they truly develop their powers of empathy.’ This account strives to make diversity not only useful but an inherent good for an educational community, since different identities generate the different ideas that are necessary for a proper education.”

This is a view that is easy to accept, but it does not define how this mixture of individuals is arrived at.  Feldman finds diversity as a goal to be a rather slippery topic.  He would prefer that a redefinition of what is considered “merit” should be the basis for assembling a “diverse” student body.  Merit should consist of something more complex than just grades and test scores; it should include the potential for contribution to the school and to society from those who have experienced unusual or challenging backgrounds.

“But diversity should not be an end in itself. Rather, diversity should be the indirect result of the goal of inclusion based on forms of merit found in every part of the population and not purely reducible to grades and scores. The university need not look precisely like America. But its classes should reflect a conscientious effort to find and admit the students who are best placed to pursue truth and become future leaders, weighing their abilities and potential in the light of the challenges they have faced. That should logically result in a wide range of students. Diversity could then live on—as an outcome, not as an objective.”

One could argue that this view merely replaces a slippery concept of diversity with a slippery concept of merit. 

Feldman does come up with a firm and defensible view of the suit against Harvard.

“Finally, although the plaintiffs in the suit assert that affirmative action for African-Americans and Latinos is the reason that more Asian-Americans are not admitted, it is very unlikely to be the case. Given current balancing goals in admissions, Asian-Americans are being compared with and balanced against white applicants, not African-American or Latino ones. If there exists unconscious, stereotype-based admissions discrimination against Asian-American applicants, as the suit alleges, that problem must be addressed by examining the unspoken bias and ensuring it does not persist. That might conceivably lead to fewer white admissions and more Asian-American ones. It should not reduce the numbers of African-Americans and Latinos admitted.”

The suit against Harvard is designed to satisfy the conservatives who wish to eliminate race from consideration at all.  Their goal is to minimize for white students any competition from African Americans and Hispanics.  If the Asian Americans have a complaint, it is due to a bias shown them with respect to white students.  That is the battle they should be fighting.

The interested reader might find the following article informative:

The Tragedy of the Fourteenth Amendment: The Supreme Court and the Death of Equality