WEBVTT NOTE Civil Rights and the Supreme Court 1 00:00:00.000 --> 00:00:02.720 Okay, well, I think we're all familiar with, 2 00:00:02.800 --> 00:00:05.160 or we may be familiar with, 3 00:00:05.240 --> 00:00:09.080 this Plessy v. Ferguson case from about 1896, 4 00:00:09.160 --> 00:00:12.880 which establishes the separate but equal principle. 5 00:00:12.960 --> 00:00:16.800 What was before the Court was the issue of whether the 14th Amendment 6 00:00:16.880 --> 00:00:20.000 to the Constitution, 7 00:00:20.080 --> 00:00:22.240 in fact, prohibited racial segregation. 8 00:00:22.320 --> 00:00:24.400 And the argument was that the 14th Amendment 9 00:00:24.480 --> 00:00:27.560 called for the extension of the equal protection of the laws 10 00:00:27.640 --> 00:00:29.800 to people in the states. 11 00:00:29.800 --> 00:00:34.960 and the Court came to the conclusion that nobody who drafted the 14th Amendment 12 00:00:35.040 --> 00:00:38.240 seriously imagined that it prohibited segregation, 13 00:00:38.320 --> 00:00:42.720 so that as long as the segregated facilities were in some sense equal, 14 00:00:42.800 --> 00:00:48.240 then the 14th Amendment requirement of the equal protection of the laws was satisfied, 15 00:00:48.320 --> 00:00:51.080 hence the doctrine of separate but equal. 16 00:00:51.160 --> 00:00:55.480 And today there's nothing more fashionable than to condemn that decision, 17 00:00:55.560 --> 00:00:58.080 and you may have good reasons to condemn it, 18 00:00:58.080 --> 00:01:00.580 But strictly from the constitutional point of view, 19 00:01:00.580 --> 00:01:05.080 I mean, that was what the 14th Amendment drafters obviously believed. 20 00:01:05.080 --> 00:01:07.080 The drafters of the 14th Amendment, 21 00:01:07.080 --> 00:01:13.080 the same people who voted to ratify or to approve the 14th Amendment in Congress, 22 00:01:13.080 --> 00:01:16.580 also voted to establish segregated schooling in the District of Columbia. 23 00:01:16.580 --> 00:01:20.080 They obviously did not believe that it was incompatible with segregation. 24 00:01:20.080 --> 00:01:24.080 So just being honest about it, if you just want to be honest, 25 00:01:24.080 --> 00:01:26.080 that does seem to be the constitutional doctrine. 26 00:01:26.080 --> 00:01:30.080 Brown vs. Board of Education 27 00:01:56.080 --> 00:02:16.040 In this decision, the justices clearly wanted to overturn the principle established in the 28 00:02:16.040 --> 00:02:17.040 Plessy case. 29 00:02:17.040 --> 00:02:22.240 They wanted to overturn separate but equal, but they felt constrained by the history of 30 00:02:22.240 --> 00:02:23.240 the Fourteenth Amendment. 31 00:02:23.240 --> 00:02:28.800 It did seem clear that the 14th Amendment did not in and of itself prohibit segregation. 32 00:02:28.800 --> 00:02:30.360 So they had to reckon with that. 33 00:02:30.360 --> 00:02:35.800 They didn't simply want to seem to just depart entirely altogether from Plessy because the 34 00:02:35.800 --> 00:02:41.160 Supreme Court at least at that time had some sense that it needed to rule in accordance 35 00:02:41.160 --> 00:02:44.020 with prior tradition. 36 00:02:44.020 --> 00:02:48.680 So they had to think of some way out of this and the way they managed to do it was they 37 00:02:48.680 --> 00:02:54.360 They came to the conclusion that modern sociological and psychological data that had been unavailable 38 00:02:54.360 --> 00:03:00.800 to the justices at the time of Plessey concluded that separate educational facilities were 39 00:03:00.800 --> 00:03:05.660 inherently unequal, that no matter what you did they would always be unequal because they 40 00:03:05.660 --> 00:03:13.040 instilled in black students a sense of inferiority and that would impair their ability to succeed 41 00:03:13.040 --> 00:03:17.880 in life from that point on in their career endeavors and so on and so forth and so you 42 00:03:17.880 --> 00:03:20.920 You couldn't have separate but equal educational facilities. 43 00:03:20.920 --> 00:03:25.700 If they were separate, then they were in and of themselves unequal. 44 00:03:25.700 --> 00:03:30.900 And this way they could claim that they weren't really going against Plessy. 45 00:03:30.900 --> 00:03:35.760 They were simply acting on new information that had been unavailable to the Plessy court. 46 00:03:35.760 --> 00:03:44.080 And so by a unanimous decision, they established that the segregation of schools by law was 47 00:03:44.080 --> 00:03:51.080 was not constitutionally acceptable and that the desegregation of the schools had to commence. 48 00:03:51.080 --> 00:04:00.080 A key piece of evidence that was used to support the idea that segregated schools, in fact, encouraged low self-esteem in black students 49 00:04:00.080 --> 00:04:03.080 were the famous Kenneth Clark doll studies. 50 00:04:03.080 --> 00:04:09.080 Kenneth Clark was a psychologist who had done some studies in which he would show dolls, 51 00:04:09.080 --> 00:04:19.080 He sent a black doll and a white doll to students, to black students and asked them which one they found more attractive, they identified with more, 52 00:04:19.080 --> 00:04:27.080 and he found that in the segregated schools of the South that the black students were choosing the white doll, 53 00:04:27.080 --> 00:04:33.080 and he felt that this was an example of how segregation had sort of alienated these students from their own people, 54 00:04:33.080 --> 00:04:36.080 that they would identify with the doll of another race. 55 00:04:36.080 --> 00:04:39.080 This was seriously advanced as evidence. 56 00:04:39.080 --> 00:04:44.080 Well, what Clark chose not to disclose was that when he had performed the same studies in the North, 57 00:04:44.080 --> 00:04:48.080 where you had more, at least somewhat more racial integration, 58 00:04:48.080 --> 00:04:51.080 and when he went to integrated schools in the North, 59 00:04:51.080 --> 00:04:54.080 he found that those black students were even more likely to choose the white doll. 60 00:04:54.080 --> 00:04:58.080 So by his logic, they had even less self-esteem in the desegregated schools. 61 00:04:58.080 --> 00:05:03.080 So the studies were of, shall we say, dubious merit. 62 00:05:03.080 --> 00:05:14.080 I quote in the book, as you may have noticed, that even a lawyer for the NAACP admitted later, in reference to the Kenneth Clark Dahl studies, he said, 63 00:05:14.080 --> 00:05:18.080 quote, I may have used the word crap to describe them. 64 00:05:18.080 --> 00:05:28.080 But nevertheless, that was the modern authority that was cited and that had enough strength to overturn the precedent in Plessy. 65 00:05:28.080 --> 00:05:40.080 Well, this decision really astonished a lot of people and it inspired a lot of lawyers and activist judges 66 00:05:40.080 --> 00:05:43.080 because they came to the conclusion that if the Supreme Court could get away with this, 67 00:05:43.080 --> 00:05:49.080 just with a sheer exercise of will, with no legal authority behind them, no precedent behind them, 68 00:05:49.080 --> 00:05:55.080 they could just carry this through, well, then it seemed to a lot of budding young lawyers and judges 69 00:05:55.080 --> 00:06:00.080 Eugen von Mises, Murray Rothbard, Friedrich Hayek, Eugen von Boehm-Bawerk, Jean-Baptiste 70 00:06:00.080 --> 00:06:05.080 Say, Frederic Bastiat, Israel Kirzner, Hans-Hermann Hoppe, Roger Garrison, Hans-Hermann Hoppe, 71 00:06:05.080 --> 00:06:10.080 Lew Rockwell, Roger Garrison, Mises Institute, Austrian School, Praxeology, catallactics, 72 00:06:10.080 --> 00:06:15.080 malinvestment, entrepreneurship, marginal utility, Human Action, Man Economy and State, 73 00:06:15.080 --> 00:06:20.080 The Theory of Money and Credit 74 00:06:25.080 --> 00:06:51.080 It's interesting to note, by the way, that the key issue in Brown was the idea that children of tender years could be irreparably harmed psychologically by the mere fact of being educated in separate facilities. 75 00:06:51.080 --> 00:07:04.080 But following the Brown ruling, legal challenges reached the Supreme Court with regard to segregated courtrooms, beaches, golf courses and parks, where the rationale in Brown obviously did not apply. 76 00:07:04.080 --> 00:07:14.080 But the Court reflexively ruled these examples of segregation also to be unconstitutional, with nothing more to substantiate its decisions than a citation of Brown. 77 00:07:14.080 --> 00:07:20.080 So whatever social outcome members of the court consider desirable could be brought about by a judicial fiat. 78 00:07:20.080 --> 00:07:25.080 And this did not alarm many people at the time because this seemed to be so obviously the morally correct decision 79 00:07:25.080 --> 00:07:32.080 that no one considered the possibility that perhaps the Supreme Court someday may hand down rulings that they didn't like 80 00:07:32.080 --> 00:07:37.080 that were based on essentially nothing more than the justices own personal opinions. 81 00:07:37.080 --> 00:07:45.080 Well, following the Brown decision then, 14 years later, comes this Green decision. 82 00:07:45.080 --> 00:07:53.080 Brown and Green, Green versus County School Board of New Kent County, this is a case in Virginia, deals with circumstances there. 83 00:07:53.080 --> 00:08:00.080 And this is interesting because here we see somewhat of a different opinion from the one reached in Brown. 84 00:08:00.080 --> 00:08:05.080 Brown is saying that you can't consider race when assigning students to schools. 85 00:08:05.080 --> 00:08:09.080 Green is arguing that you have to be obsessed with race when assigning students to schools. 86 00:08:09.080 --> 00:08:15.080 Brown was what we might call a desegregation decision, whereas Green is an integration decision. 87 00:08:15.080 --> 00:08:22.080 Because the circumstances were that you had two schools in this county, you had a white school and a black school, 88 00:08:22.080 --> 00:08:29.080 and that in the wake of the Brown decision, it had been decided that anybody could go to whatever school he wanted, 89 00:08:29.080 --> 00:08:39.080 There's a free choice plan introduced, but that in fact, none of the white students chose to go to the black school and a very small fraction of the black students chose to go to the white school. 90 00:08:39.080 --> 00:08:43.080 So in practice, they remained, in effect, a white and a black school. 91 00:08:43.080 --> 00:08:58.080 But it seemed to best anyone could tell that the people of this county had conformed, their plan conformed to the requirements and demands of Brown because nobody was forced to go to a particular school. 92 00:08:58.080 --> 00:09:00.080 The Theory of Money and Credit 93 00:09:28.080 --> 00:09:32.320 That principle held in the case of schools, but the court decided that it did not. 94 00:09:32.320 --> 00:09:38.120 That in fact, yes, Virginia and anybody else in this county in Virginia was free to come 95 00:09:38.120 --> 00:09:43.080 up with whatever plan they wanted to to desegregate the schools, as long as the outcome was the 96 00:09:43.080 --> 00:09:44.840 one that the court wanted. 97 00:09:44.840 --> 00:09:48.460 As long as you can do it any way you want, as long as the result is that blacks and whites 98 00:09:48.460 --> 00:09:49.640 are mixed. 99 00:09:49.640 --> 00:09:54.120 So it was not simply a matter of everybody has the opportunity to go to the school they 100 00:09:54.120 --> 00:09:55.120 want. 101 00:09:55.120 --> 00:10:00.120 The results have to be a certain way, the results have to be racial mixture. 102 00:10:00.120 --> 00:10:06.120 So some people have said that green represents a substantial departure from the precedent of brown, 103 00:10:06.120 --> 00:10:11.120 because brown had been colorblind, whereas green is saying you've got to assign people, 104 00:10:11.120 --> 00:10:17.120 you've got to make sure there is racial mixture, and you've got to make sure there are enough of this group and that group together. 105 00:10:17.120 --> 00:10:23.120 But you could just as easily argue that green in fact follows logically from the logic in brown, 106 00:10:23.120 --> 00:10:27.120 Because Brown had said that what is it that makes segregated schooling unequal? 107 00:10:27.120 --> 00:10:32.120 It's the fact that black students do not have the opportunity to study with white students. 108 00:10:32.120 --> 00:10:35.120 It imbues them with a sense of inferiority. 109 00:10:35.120 --> 00:10:40.120 So it's the lack of white students in the black schools that's making them unequal. 110 00:10:40.120 --> 00:10:43.120 So therefore, the logical result seems to be in green. 111 00:10:43.120 --> 00:10:47.120 Therefore, we've got to do whatever we have to do to bring white students into those schools. 112 00:10:47.120 --> 00:10:51.120 It does seem, in fact, to follow from that logic. 113 00:10:51.120 --> 00:11:07.120 Then a few years later, in the early 70s, you get the cases of both the Swan case, which is sometimes called the Charmec case, because it's Charlotte Mecklenburg in North Carolina, and then the Keys case, which is the North in Denver, Colorado. 114 00:11:07.120 --> 00:11:19.120 The Swann case makes clear that the federal government, the federal courts are saying that it's legitimate to have forced busing schemes to establish racial balance in the schools. 115 00:11:19.120 --> 00:11:33.120 And so you had situations where students were being bused as much as up to an hour to an hour and a half one way, not even round trip, so as to satisfy some racial balancing requirement. 116 00:11:33.120 --> 00:12:03.120 and in my book I go into details about what happened in Boston where you had a basically a war zone in the schools because of the way an entire grade levels and the entire 11th grade was just sent to some school you know halfway across the city and vice versa this did not in fact lead to a big love fest among everybody to some to everyone's amazement in fact it led to more tension than ever of course and in fact even black parents only a slim majority of whom had favored these busing schemes 117 00:12:03.120 --> 00:12:10.120 The Keyes decision made clear that even if your school had not officially discriminated in the past, the federal government could still impose busing on your community if necessary to bring about racial balance, so no one in the country was exempt from these busings. 118 00:12:33.120 --> 00:12:36.120 Busing Schemes 119 00:12:36.120 --> 00:12:38.120 Well, I think it's worth considering 120 00:12:38.120 --> 00:12:41.120 what were the effects of these 121 00:12:41.120 --> 00:12:43.120 plans on 122 00:12:43.120 --> 00:12:45.120 black educational performance, right? 123 00:12:45.120 --> 00:12:48.120 I mean, we would at least have the right to expect after literally 124 00:12:48.120 --> 00:12:50.120 billions of dollars spent 125 00:12:50.120 --> 00:12:54.120 on busing schemes and communities disrupted and uprooted and 126 00:12:54.120 --> 00:12:58.120 racial chaos all over the place and violence that at least 127 00:12:58.120 --> 00:13:03.120 There's some good news to report in terms of educational performance. 128 00:13:03.120 --> 00:13:10.120 Well, I want to begin this part of the discussion by noting that the social science literature, 129 00:13:10.120 --> 00:13:15.120 well before the Brown v. Board of Education decision, 130 00:13:15.120 --> 00:13:20.120 had sprinkled throughout something called the harm and benefit thesis. 131 00:13:20.120 --> 00:13:23.120 The harm and benefit thesis went something like this. 132 00:13:23.120 --> 00:13:30.120 Desegregation instills a sense of inferiority in blacks, damages their self-esteem and harms their academic performance. 133 00:13:30.120 --> 00:13:36.120 But desegregation, in addition to raising black self-esteem and educational achievement, 134 00:13:36.120 --> 00:13:41.120 would also have the benefit of reducing white prejudice against blacks, 135 00:13:41.120 --> 00:13:46.120 because whites would be able to observe the behavior and character traits of blacks for themselves, 136 00:13:46.120 --> 00:13:50.120 unmediated by stereotypes and ignorance. 137 00:13:50.120 --> 00:13:56.120 So in 1966 it turns out that the Department of Health, Education and Welfare released a study 138 00:13:56.120 --> 00:14:00.120 whose major conclusions were radically at odds with this harm and benefit thesis. 139 00:14:00.120 --> 00:14:03.120 It became known as the Coleman Report. 140 00:14:03.120 --> 00:14:08.120 James Coleman was the sociologist who led the group of scholars who prepared this report. 141 00:14:08.120 --> 00:14:11.120 And it found that contrary to the general impression, 142 00:14:11.120 --> 00:14:15.120 black and white schools at that time were roughly similar in expenditures, 143 00:14:15.120 --> 00:14:17.120 physical plant and other resources, 144 00:14:17.120 --> 00:14:22.120 and that any differences between them were as likely to favor the black school as the white. 145 00:14:22.120 --> 00:14:28.120 But the report also argued that black academic achievement, which was well below that of whites, 146 00:14:28.120 --> 00:14:34.120 could not be accounted for by any small differences that might still exist between white and black schools. 147 00:14:34.120 --> 00:14:40.120 That it was much more strongly correlated with the socio-economic background of a student's family. 148 00:14:40.120 --> 00:14:45.120 Well, that was not exactly what academics and politicians wanted to hear. 149 00:14:45.120 --> 00:14:55.120 So they ignored the Coleman Report and put much more stock in a report the next year by the US Commission on Civil Rights called Racial Isolation in the Public Schools. 150 00:14:55.120 --> 00:14:59.120 This report took the harm and benefit thesis to a new level. 151 00:14:59.120 --> 00:15:04.120 It was no longer just schools segregated by law that made blacks feel inferior. 152 00:15:04.120 --> 00:15:13.120 It was, according to this report, racially segregated schools in and of themselves, regardless of whether the segregation was mandated by law 153 00:15:13.120 --> 00:15:20.180 by Law, or was the innocent outcome of racially segregated housing patterns? 154 00:15:20.180 --> 00:15:24.360 That these schools harmed the self-esteem of minority students, whether or not this segregation 155 00:15:24.360 --> 00:15:28.640 was by law and were a contributing factor to their poor educational performance, and 156 00:15:28.640 --> 00:15:31.980 that became the conventional wisdom. 157 00:15:31.980 --> 00:15:38.460 By the 1990s though, proponents of this thesis were severely chastened and in retreat. 158 00:15:38.460 --> 00:15:43.780 Billions of dollars had been spent by the 90s, countless neighborhoods had been ruined, 159 00:15:43.780 --> 00:15:48.700 mandated busing schemes were the order of the day, and racial strife in the schools 160 00:15:48.700 --> 00:15:53.860 were as likely to have been aggravated as alleviated by these forced racial mixture 161 00:15:53.860 --> 00:15:55.060 programs. 162 00:15:55.060 --> 00:16:00.540 And black educational performance was still quite poor, so it became necessary to modify 163 00:16:00.540 --> 00:16:02.040 these assumptions. 164 00:16:02.040 --> 00:16:08.300 Now the story was that desegregation could only have these good effects if it was accompanied 165 00:16:08.300 --> 00:16:13.440 by a host of other changes. So, for instance, now it was alleged that we needed culturally 166 00:16:13.440 --> 00:16:18.900 sensitive textbooks. We needed the relaxation of disciplinary measures in order to take 167 00:16:18.900 --> 00:16:24.480 into account cultural differences between blacks and whites. We needed to abolish heterogeneous 168 00:16:24.480 --> 00:16:29.860 grouping or ability tracking, which meant that it used to be the case that students 169 00:16:29.860 --> 00:16:34.120 of a certain skill level were assigned to one class and a lower skill level to another 170 00:16:34.120 --> 00:16:39.560 and so on and on. But it was argued that this also hurts black self-esteem, so we can't 171 00:16:39.560 --> 00:16:45.120 have any ability tracking. Everybody, regardless of ability, should be heterogeneously mixed. 172 00:16:45.120 --> 00:16:51.040 Well, the statistics have not been heartening. The National Assessment of Educational Progress 173 00:16:51.040 --> 00:16:55.820 from a few years ago found that the average black student who is about to complete his 174 00:16:55.820 --> 00:17:01.600 senior year of high school performs at a slightly lower level than the average white eighth 175 00:17:01.600 --> 00:17:31.600 So that is, black students four years higher are slightly lower than the average white eighth grader in reading and American history, after all this stuff has been done, and far below the average white eighth grader in math and geometry, and I've got the statistics here, only 3% of black students could demonstrate more than a partial mastery of the fundamental skills necessary for proficient work in 12th grade mathematics, for whites the figure was 7 to 10 times higher. 176 00:17:31.600 --> 00:17:44.600 While 3.4% of white students were ranked as advanced in science and 2.2% in mathematics, the corresponding figures for black students were 0.1% and 0.2% respectively. 177 00:17:44.600 --> 00:18:00.600 From the 1970s through the late 1990s, which is the period that this data illuminates for us, the story has been one of overall stagnation, with the exception of reading scores, which show blacks improving from the 10th to the 23rd percentile. 178 00:18:00.600 --> 00:18:10.600 Now although some black progress was evident until around 1990 those gains have been completely erased by 1999 for reasons that are not altogether clear. 179 00:18:10.600 --> 00:18:21.600 During a period in which school class size has dropped and spending has gone up, particularly spending directed toward the least advantaged, black performance in math has slid back to its 1978 level. 180 00:18:21.600 --> 00:18:29.600 The numbers in science show blacks averaging in the eighth percentile in 1977 and the tenth in 1999. 181 00:18:29.600 --> 00:18:44.600 On the Math SAT, only 700 black students in the entire country scored above 700 in the year 2001, while over 16,000 Asian-American students did so in spite of being substantially outnumbered by blacks. 182 00:18:44.600 --> 00:18:49.600 The racial disparity in achievement and skill level is evident even in the earliest years. 183 00:18:49.600 --> 00:19:01.600 In the earliest years, the National Center for Educational Statistics found that blacks entering kindergarten were already disproportionately testing in the bottom quarter of students in reading, math and general knowledge. 184 00:19:01.600 --> 00:19:08.600 Between one-third and one-half of black students tested that low in the various subjects as compared to about one-sixth of whites. 185 00:19:08.600 --> 00:19:14.600 Two years later, when the same students were tested again, the black-white gap was unchanged. 186 00:19:14.600 --> 00:19:19.600 Behavioral differences are also evident that early and persist into the future. 187 00:19:19.600 --> 00:19:25.600 On average, black students are much less likely than whites to be described by kindergarten teachers as attentive, 188 00:19:25.600 --> 00:19:29.600 eager to learn and persistent in carrying out assigned tasks, 189 00:19:29.600 --> 00:19:33.600 and more likely to be described as argumentative, quick-tempered and violent. 190 00:19:33.600 --> 00:19:36.600 These discipline disparities persist over time. 191 00:19:36.600 --> 00:19:42.600 Later in life, blacks are two and a half times as likely to be suspended or expelled from school as whites. 192 00:19:42.600 --> 00:19:52.600 Faced with statistics like these, the so-called civil rights groups typically accuse white teachers of arbitrarily singling out blacks for punishment. 193 00:19:52.600 --> 00:19:58.600 But to the contrary, black teachers have been found to be even more critical of black students than white teachers are. 194 00:19:58.600 --> 00:20:04.600 Moreover, Asian students are less than half as likely as whites to be suspended or expelled. 195 00:20:04.600 --> 00:20:10.600 Are we seriously to believe that an anti-white, pro-Asian bias permeates the American educational system? 196 00:20:10.600 --> 00:20:17.600 Educational disparities between the races persist even when social class is taken into account. 197 00:20:17.600 --> 00:20:23.600 Now, it's true that students from higher socioeconomic backgrounds do better than students from lower ones, 198 00:20:23.600 --> 00:20:26.600 but since this phenomenon is true for blacks and whites alike, 199 00:20:26.600 --> 00:20:33.600 the racial gap between them becomes only marginally smaller as we compare blacks and whites from similar backgrounds. 200 00:20:33.600 --> 00:20:39.600 For example, Shaker Heights, Ohio, as an example is often cited, is an affluent Cleveland suburb. 201 00:20:39.600 --> 00:20:44.600 Its black residents are slightly below their white counterparts in education and income levels, 202 00:20:44.600 --> 00:20:48.600 but they're nevertheless roughly comparable to their white neighbors. 203 00:20:48.600 --> 00:20:52.600 The high school spends 50% more per pupil than the national average, 204 00:20:52.600 --> 00:20:56.600 and the racial gap in achievement persists there. 205 00:20:56.600 --> 00:21:02.600 The Thurnstrom, Stefan and Abigail Thurnstrom are two accomplished scholars in the area of race. 206 00:21:02.600 --> 00:21:07.600 Stefan Thurnstrom was my professor at Harvard in courses on race and social history, 207 00:21:07.600 --> 00:21:12.160 History, and they run down the statistics for Shaker Heights. For one thing, even though 208 00:21:12.160 --> 00:21:16.400 the school makes a special effort to urge black students to take advanced placement 209 00:21:16.400 --> 00:21:20.880 courses, students can take whatever courses they want regardless of test scores or past 210 00:21:20.880 --> 00:21:28.200 grades, only 30% of black students do compared with 87% of whites. Two-thirds of the city's 211 00:21:28.200 --> 00:21:33.800 blacks failed at least one of Ohio's state proficiency tests in 1999 and 2000, whereas 212 00:21:33.800 --> 00:21:38.800 says the same was true of only one sixth of whites, and while over half the white students 213 00:21:38.800 --> 00:21:44.320 passed the tests with honors, only four percent of blacks did. That number was no higher than 214 00:21:44.320 --> 00:21:48.800 the statewide average for African Americans despite the fact that the income and educational 215 00:21:48.800 --> 00:21:53.260 levels of black families in Shaker Heights were far above those for blacks in Ohio as 216 00:21:53.260 --> 00:21:57.560 a whole and their children were attending integrated schools that were regarded as among 217 00:21:57.560 --> 00:22:00.080 the best in the state. 218 00:22:00.080 --> 00:22:04.360 While various explanations have been advanced to account for these discrepancies, among 219 00:22:04.360 --> 00:22:07.840 them the much greater prevalence of single parent families in the black community than 220 00:22:07.840 --> 00:22:12.760 among whites or Asians, as well as cultural differences between racial groups, reflected 221 00:22:12.760 --> 00:22:17.560 for example in parents' expectations of children, emphasis on academic achievement 222 00:22:17.560 --> 00:22:19.560 and other factors. 223 00:22:19.560 --> 00:22:26.360 These points are typically ignored, but there is for example a study that asked students 224 00:22:26.360 --> 00:22:30.460 Students from various races, what grade would you have to get before you get in trouble 225 00:22:30.460 --> 00:22:37.640 with your parents? On average, Asian students responded that anything below an A-minus was 226 00:22:37.640 --> 00:22:44.040 liable to get them a lecture from their parents. For whites, the threshold was B-minus. But 227 00:22:44.040 --> 00:22:48.600 blacks and Hispanics reported that they got into trouble only for grades below C-minus. 228 00:22:48.600 --> 00:22:54.780 Well, you have the occasional renegade black intellectual like Shelby Steele or John McWhorter 229 00:22:54.780 --> 00:23:00.260 or Bill Cosby, who identifies this as a problem that the black community has to address but 230 00:23:00.260 --> 00:23:05.540 the black establishment has become so hostile to obvious observations like these that we 231 00:23:05.540 --> 00:23:10.540 have actually reached a point at which it's considered newsworthy, even courageous, when 232 00:23:10.540 --> 00:23:16.220 a prominent member of the black community simply steps forward and states the obvious. 233 00:23:16.220 --> 00:23:19.380 Well even in light of all this, there are some activists who have tried to hold out 234 00:23:19.380 --> 00:23:24.500 hope that we have in fact found a formula for at least partially reducing the black-white 235 00:23:24.500 --> 00:23:27.340 Black-White Gap, Desegregation. 236 00:23:27.340 --> 00:23:33.880 As we've seen, some progress was made in narrowing the black-white gap until about 1990. 237 00:23:33.880 --> 00:23:39.000 And since the 20-year period from 1968 to about 1988 saw a greater increase in the proportion 238 00:23:39.000 --> 00:23:43.980 of desegregated black students than any other two consecutive decades, it's been easy to 239 00:23:43.980 --> 00:23:47.760 attribute these happy results to desegregation itself. 240 00:23:47.760 --> 00:23:51.040 But the statistics refuse to support that explanation. 241 00:23:51.040 --> 00:23:56.360 In 1975 and 1988, the years of the greatest black improvement, black thirteen year olds 242 00:23:56.360 --> 00:24:01.360 in predominantly minority schools achieved essentially the same gains in reading scores 243 00:24:01.360 --> 00:24:07.480 as their counterparts in majority white schools, in the integrated schools. Blacks in predominantly 244 00:24:07.480 --> 00:24:12.200 minority schools actually gained ten points more in math than blacks in majority white 245 00:24:12.200 --> 00:24:17.700 schools. Other age groups show similar results. David Armour, for example, reports that during 246 00:24:17.700 --> 00:24:30.700 For the same period, age 9 blacks in segregated schools gained 12 points in reading and 17 points in math, compared with 11 points and 16 points respectively for blacks in desegregated schools. 247 00:24:30.700 --> 00:24:42.700 For age 17 blacks, those in segregated schools gained 34 points in reading and 22 points in math, compared to 21 and 17 points respectively for those in desegregated schools. 248 00:24:42.700 --> 00:24:59.700 So what this meant in terms of overall results was that by 1990 there was a difference of only a few points in the reading and math scores of blacks in de facto segregated schools versus those in desegregated schools and hardly any measurable difference at all in the scores of black 17 year olds. 249 00:24:59.700 --> 00:25:11.700 So where after all these years is the harm and benefit thesis on the basis of which black and white communities alike were turned upside down by federal judges, where does that thesis now stand? 250 00:25:11.700 --> 00:25:22.700 After a thorough review of the existing scholarship on the issue, David Armour observes that no major component of the thesis receives unequivocal support from the available evidence. 251 00:25:22.700 --> 00:25:28.700 Well, I don't need to tell you that none of that information is considered newsworthy enough to be reported basically anywhere. 252 00:25:28.700 --> 00:25:37.700 Well, beyond these educational cases, we then have the Civil Rights Act of 1964, which is of course a legislative rather than a judicial act, 253 00:25:37.700 --> 00:25:47.700 that prohibited segregation in government facilities and in private facilities catering to the public, such as hotels and restaurants. 254 00:25:47.700 --> 00:25:51.700 It also prohibited employment discrimination. 255 00:25:51.700 --> 00:26:03.700 Now, it's interesting that at the time that it was passed, there is in Title VII there, it does say that this act does not in any way require employers to hire according to a fixed quota. 256 00:26:03.700 --> 00:26:23.700 Well, as the Supreme Court began to rule on the Civil Rights Act, however, it turns out that the Civil Rights Act meant something other than what the text of the Act actually said it meant. 257 00:26:23.700 --> 00:26:29.700 For instance, the Civil Rights Act made clear that discrimination is an intentional act. 258 00:26:29.700 --> 00:26:35.200 Act. You cannot be guilty of discrimination if you do it unconsciously, for instance. 259 00:26:35.200 --> 00:26:40.300 If you do it, like let's say you have an intelligence test and you say everybody who's going to 260 00:26:40.300 --> 00:26:45.020 be promoted in this company must pass this intelligence test. And let's say more whites 261 00:26:45.020 --> 00:26:49.580 than blacks pass the intelligence test, you would not under the wording of the Civil Rights 262 00:26:49.580 --> 00:26:54.960 Act be considered guilty of discrimination because you're basing the issue, you're basing 263 00:26:54.960 --> 00:27:04.960 Well, as the Supreme Court got its hand into this, it turned out that the reality was much different. 264 00:27:04.960 --> 00:27:12.960 This Griggs v. Duke Power Company case from the early 1970s found Duke Power Company guilty of discrimination 265 00:27:12.960 --> 00:27:20.960 because they were basing their promotion decisions on whether or not the candidate had a high school diploma or passed an intelligence test. 266 00:27:20.960 --> 00:27:35.960 and the court found that since more proportionately more whites passed the intelligence test or had high school diplomas than blacks that this was actually an insidious form of discrimination that was illegal and Duke Power Company could be punished for engaging in it. 267 00:27:35.960 --> 00:27:46.960 Now it's interesting that the court admitted that it did not believe that the Duke Power Company was actively and on purpose discriminating against blacks by instituting these criteria. 268 00:27:46.960 --> 00:28:16.960 They actually believe that Duke Power Company was a goodwill employer that did not in fact have any negative intentions, any hostile intentions toward blacks, but nevertheless, they were still guilty, regardless of the fact they hadn't intended to do this, they were guilty of discrimination, because their employment criteria had what was called disparate impact, because it impacted one race differently from how it impacted others. 269 00:28:16.960 --> 00:28:26.960 And so it became the principle from now on that employers could not have employment criteria that had a disparate impact on the races. 270 00:28:26.960 --> 00:28:33.960 So that it became illegal from this point on for an employer to ask whether you had a high school diploma, 271 00:28:33.960 --> 00:28:45.960 whether you had a dishonorable military discharge, whether you were prone, like for example a farmer could not even ask somebody a farm hand. 272 00:28:45.960 --> 00:28:54.960 If you were prone to back injuries, which is a good question, because obviously when you're farming, you might be liable to throw your back out, because blacks are more likely to have back injuries. 273 00:28:54.960 --> 00:29:02.960 So that was a, that was disparate impact as well. Now you may be thinking, well, I know for a fact there are employers that ask if you have a high school diploma. 274 00:29:02.960 --> 00:29:14.960 Well, it's true that there are such employers, but those employers are prepared to go to court and justify their employment criteria and say, look, we need people to have high school diplomas for these specific reasons. 275 00:29:14.960 --> 00:29:21.960 If you can't come up with specific reasons for why people need a high school diploma, 276 00:29:21.960 --> 00:29:24.960 then you can be cited for discrimination. 277 00:29:24.960 --> 00:29:29.960 And, you know, a lot of employers don't really want to be dragged into court and forced to justify their employment criteria. 278 00:29:29.960 --> 00:29:31.960 Half the time they don't have a specific reason. 279 00:29:31.960 --> 00:29:36.960 They just say, well, I don't know, it proves that people can complete tasks and they're responsible. 280 00:29:36.960 --> 00:29:42.960 But if you don't have a specific reason, you can be called to account for this, for alleged discrimination. 281 00:29:42.960 --> 00:30:12.960 Perhaps the best known of these cases is the Bakke case from the mid-70s, which involves 76 or 77, which involves a gentleman who was applying to medical school in the University of California system and he was turned down even though he had excellent grades, a very good grade point average, and what upset Bakke was the fact that there was in effect a minority set-aside program in the University of California 282 00:30:12.960 --> 00:30:20.080 California Medical School, this was a set-aside program in which no white had ever been admitted, 283 00:30:20.080 --> 00:30:26.520 so it's obviously a minority set-aside program, and Bakke argued that he had better scores 284 00:30:26.520 --> 00:30:33.980 than everybody in that whole program, that he had an average A-, A- average for his grades, 285 00:30:33.980 --> 00:30:39.100 they had a C+, for example, I mean it wasn't even close, and affirmative action of course 286 00:30:39.100 --> 00:30:48.100 This is always cited to us as these are cases supposedly where we're just giving a slight leg up to a disadvantaged group. 287 00:30:48.100 --> 00:30:55.100 But as usual, affirmative action always means huge advantages given to politically preferred groups. 288 00:30:55.100 --> 00:30:57.100 And the Bakke case was no exception. 289 00:30:57.100 --> 00:31:04.100 It turned out, for example, that on the MCAT, the medical school admission test, Bakke had excellent scores. 290 00:31:04.100 --> 00:31:10.780 For example, there were four portions of the test and he was in the 96th percentile in 291 00:31:10.780 --> 00:31:15.660 the first portion, then 94th, 97th and 72nd. 292 00:31:15.660 --> 00:31:21.580 The admittees under the quota program were scored in the 34th percentile, 30th percentile, 293 00:31:21.580 --> 00:31:25.780 37th percentile and then 18th percentile. 294 00:31:25.780 --> 00:31:31.700 Now one of my friends who is a professor in Connecticut asks the legitimate question, what 295 00:31:31.700 --> 00:31:37.520 What if you learned that your physician had scored in the 18th percentile from the bottom 296 00:31:37.520 --> 00:31:44.400 on one of the MCAT sections? I mean, would that affect your choice of physician? And 297 00:31:44.400 --> 00:31:49.760 he asked the question, if a score in the 18th percentile does not lack, does not represent 298 00:31:49.760 --> 00:31:55.980 a lack of qualification, what would the 12th percentile, the 10th? And again, this is the 299 00:31:55.980 --> 00:32:02.980 The average score of the people admitted in the mid-1970s under this affirmative action program, 300 00:32:02.980 --> 00:32:08.980 this was the average score, which means some of them scored lower than the 18th percentile and were still being admitted. 301 00:32:08.980 --> 00:32:13.980 So it's not even in the ballpark. It's not that, well, there are a few points lower and let's give them a break. 302 00:32:13.980 --> 00:32:18.980 Not even in the ballpark. And so Bakke said, look, this is an institution that's receiving government money, 303 00:32:18.980 --> 00:32:25.980 So I have the right to equal protection under the law and so I demand that I be admitted to the school. 304 00:32:25.980 --> 00:32:31.980 And the court in a five to four decision came up with a very odd answer. 305 00:32:31.980 --> 00:32:33.980 They came to the conclusion that yes, Bakke should be admitted. 306 00:32:33.980 --> 00:32:37.980 He should go on and be admitted to medical school. 307 00:32:37.980 --> 00:32:46.980 But they argued that on the margin race could still be employed as a criterion. 308 00:32:46.980 --> 00:32:55.980 Well, this is obviously not on the margin. I mean, this is a huge, there's a vast gap here that's going on. 309 00:32:55.980 --> 00:33:02.980 But the Bakke case basically made clear that the Supreme Court was not in any way going to interfere with these type of set-aside programs. 310 00:33:02.980 --> 00:33:10.980 And I actually note, again, in my book, the case of one of the doctors who was admitted under this program 311 00:33:10.980 --> 00:33:15.100 program, ended up being a quack who had to have his medical license taken away and who 312 00:33:15.100 --> 00:33:18.140 was responsible for the deaths of several of his patients. 313 00:33:18.140 --> 00:33:24.100 He actually hid one of the bodies in his home for more than a day before he figured out 314 00:33:24.100 --> 00:33:25.940 what to do with it. 315 00:33:25.940 --> 00:33:30.580 And this was a guy who had been touted by Ted Kennedy and all these people. 316 00:33:30.580 --> 00:33:31.580 What a wonderful example. 317 00:33:31.580 --> 00:33:35.300 Look at this guy, he's a wonderful doctor, shame on all you people who are opposed to 318 00:33:35.300 --> 00:33:36.540 affirmative action. 319 00:33:36.540 --> 00:33:39.900 And then when it turned out that he was a quack who killed several patients, we didn't 320 00:33:39.900 --> 00:34:09.900 Well, finally, the Weber case is a case involving a steel worker who was passed over for a promotion, even though a member of minority groups who were employed by his employer were getting these promotions ahead of him, and he had more seniority and qualifications, and so he was convinced that they weren't allowed to do this, that he went back to the Civil Rights Act and said that nothing in here suggests that people should be allowed to do this. 321 00:34:09.900 --> 00:34:16.900 The Supreme Court found that no, he doesn't, that the employer is at liberty to do this, and the argument was that Weber was reading the Civil Rights Act too literally. 322 00:34:16.900 --> 00:34:21.900 He was reading the words of the Act, and what he should be reading was the spirit of the Act. 323 00:34:21.900 --> 00:34:25.900 The spirit of the Act was intended to help blacks, basically. 324 00:34:25.900 --> 00:34:28.900 And so this program helps blacks, so it's okay. 325 00:34:28.900 --> 00:34:32.900 And if you're reading that section of the Civil Rights Act, it's okay. 326 00:34:32.900 --> 00:34:37.860 of the Act was intended to help blacks, basically, and so this program helps blacks, so it's 327 00:34:37.860 --> 00:34:38.860 okay. 328 00:34:38.860 --> 00:34:42.380 And if you're reading that section that says no quota system should be established, you're 329 00:34:42.380 --> 00:34:45.180 really, you know, you're not really getting it, you know, you're not getting the spirit 330 00:34:45.180 --> 00:34:46.180 of things. 331 00:34:46.180 --> 00:34:49.740 And thank goodness we've got nine lifetime appointed lawyers who are going to tell you 332 00:34:49.740 --> 00:34:51.740 what the spirit of the act means. 333 00:34:51.740 --> 00:34:54.060 So that was the case with Weber. 334 00:34:54.060 --> 00:34:59.160 Now some people have tried to argue that, you know, these minority set-aside programs 335 00:34:59.160 --> 00:35:06.160 are not really such a bad thing and they're acceptable even on libertarian grounds because they're done voluntarily by private employers. 336 00:35:06.160 --> 00:35:17.160 But that argument doesn't work because if the employer doesn't engage in programs like this and let's say he's got only 3 or 4% of his workforce belong to minority groups 337 00:35:17.160 --> 00:35:25.160 but the surrounding population is let's say 20% minority, he's going to be sued. The Justice Department is going to come down on him. 338 00:35:25.160 --> 00:35:32.160 So it's in no way voluntary to engage in a program in the absence of which you would be hauled into court and have your business ruined. 339 00:35:32.160 --> 00:35:45.160 I have a friend, I'll close with this, I have a friend in Texas whose father runs an office supply wholesale company and they've got a largely white workforce, 340 00:35:45.160 --> 00:35:51.160 but it's not because of malice on his part or that he thinks it's a good use of his time to spend time thinking, 341 00:35:51.160 --> 00:35:53.660 How can I be mean to blacks for no reason? 342 00:35:53.660 --> 00:35:56.160 It just so happens that these are the people he's hired. 343 00:35:56.160 --> 00:35:59.660 So every year he gets a call from the local NAACP asking 344 00:35:59.660 --> 00:36:03.660 how much would he like to contribute to the big banquet they're having this year? 345 00:36:03.660 --> 00:36:05.660 And everybody knows what that means. 346 00:36:05.660 --> 00:36:08.660 How much would you like us to pay us to shut up about the fact that 347 00:36:08.660 --> 00:36:10.660 we don't think you've employed enough blacks? 348 00:36:10.660 --> 00:36:13.660 And this type of shakedown goes on every day. 349 00:36:15.660 --> 00:36:20.660 Jesse Jackson drives a very nice car, he's made a very good living shaking down banks, 350 00:36:20.660 --> 00:36:31.660 What can you do other than go along with it, because basically what you're going to have is a case heard in a kangaroo court that you couldn't possibly win. 351 00:36:31.660 --> 00:36:38.660 I mean, you'd basically have a better chance in one of Stalin's show trials than you would in a discrimination case in the US.