January 13, 2006

Affirmative Action and Baseball

During his testimony today against Judge Alito, Ted Shaw, President of the NAACP Legal Defense and Educational Fund, brought up yet another baseball analogy – this one a quote about Hank Aaron and affirmative action that is attributed to Judge Alito. Actually, the quote is from the Reagan administration's Supreme Court brief in Wygant v. Jackson Board of Education (1986), a brief that Samuel Alito helped write while working in the solicitor general's office. The brief, which opposed a layoff system favoring minority teachers, argued that "Henry Aaron would not be regarded as the all-time home run king, and he would not have been a model for youth, if the fences had been moved in whenever he came to the plate." Shaw took issue with the analogy, saying it "reflects a fundamental misunderstanding about affirmative action." "It's not about asking that the fences be moved in. It's about asking about an opportunity to take the field," he said.

There may be affirmative action programs that can, at least charitably, be described as doing nothing more than leveling the playing field. But Ted Shaw knows full well that affirmative action programs often involve massive racial preferences akin to moving the fences nearly all the way to the infield, because he has been at the forefront of efforts to defend such programs. A recent example is Shaw's defense of the University of Michigan's race-based admissions system, the subject of a pair of 2003 Supreme Court cases discussed below. Under UM's point-based undergraduate admissions system, minority applicants received a 20-point bonus, the equivalent of a full grade point. By comparison, applicants could receive one point for an outstanding essay and five points for the highest level of personal achievement. The racial preferences in UM Law School's admissions system were equally massive, though less transparent. In both cases, black, Hispanic, and Native American applicants with B-averages were treated as equal to white and Asian applicants with A-averages. Now, if that’s not moving the fences in, what is??

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