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Law & the Courts

Some Affirmative-Action Observations Prompted by Governor Kasich’s Comments at the NRI Ideas Summit

From a news story on Ohio governor John Kasich at the National Review Institute Ideas Summit on Friday, titled “Kasich Explains to Conservatives How He Won African-American Votes”: “He also suggested that awarding 20 percent of contracts in a recent highway project to African-American firms had been a success for communities of color.”

Needless to say, this sort of bean-counting makes me nervous — especially if, as is often the case, the 20 percent came about as a result of a state-mandated “goal” (read “quota”). Ohio is a repeat offender in this area, by the way.

But here’s an instructive story: When I first heard about this, I was told that Kasich was bragging about the 80 percent that went to whites rather than the 20 percent that went to blacks. Needless to say, this would have been a very big deal, and probably the end of any presidential aspirations by the governor. But the news story cited above says that, no, what Kasich was bragging about was not the 80 percent going to whites but the 20 percent going to blacks. That’s completely different!

But wait: Either way Kasich is saying the same thing, so why would the “80 percent” version create a firestorm while the “20 percent” version creates a yawn? Oh, because Kasich is white, you say. But if a black politician bragged about a set-aside program that he had helped pass by pointing to the high percentage of contracts now going to blacks, would anybody condemn that? Would anybody even notice?

Okay, you say, maybe the reason for the difference is that one quota is for a group that has been oppressed and the other is for a group that has been an oppressor. But is that really how we ought to be making law and policy in 2015, in a country that is increasingly multiracial and multiethnic? 

And what if we have a quota for, say, Latinos that hurts, say, Asian Americans — as is indeed the case in university admissions: Is there a history of Asian Americans oppressing Latinos in this country? And, in the contracting context, what if the preferences favor Asian Americans (and blacks) over Latinos (as sometimes happens)?  Do we have a history of Latinos oppressing Asian Americans and Asian Americans oppressing Latinos?

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