Robert L. Sharp: Desire to be unfairly fair

05/23/2009 1:17 AM

05/23/2009 1:21 AM

There is general agreement in this country that some form of social engineering is appropriate to right past wrongs, particularly in terms of the treatment of minorities.

This leads to the apparent oxymoron of being "unfair to be fair."

The opportunity to nominate a female, better yet a female Latina to the Supreme Court, is an example of the pursuit of "fairness."

Or to use President Obama's term, someone with "empathy."

Another example is the apparent need for the person to follow Obama as the junior senator from Illinois to be African American.

Unfairness in an attempt to be fair in righting past unfairness is what is seen in the desire to have a balance of ethnicities or races represented on a jury, a school board, a city council or the president's cabinet.

Admitted or not, the concept is that people will be unfair and favor their own group, so some sort of fairness will ensue if you have a balance of narrow interests.

Quoting Thomas Sowell's recent column on this subject:

"Would you want to go into court to appear before a judge with 'empathy' for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.

"Appoint enough Supreme Court justices with 'empathy' for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees 'equal protection of the laws' for all Americans."

It is true in certain cases a member of a particular ethnic group would have better insight into the culture and mores of that group that might explain something that would escape the insight of others.

Overall, however, this eliminates pure unbiased color-blind competence as a criterion.

A landmark case that went to the U.S. Supreme Court in 1978 was Regents of the University of California v. Bakke.

This was a real head-scratcher, as it bars quota systems in college admissions, but affirms the constitutionality of affirmative action programs.

The Medical School of UC Davis had two admissions programs, regular and special. "Special" considered "economically and/or educationally disadvantaged" applicants and members of a "minority group."

Bakke filed an action alleging that the special admissions program operated to exclude him on the basis of his (Caucasian) race in violation of the Equal Protection Clause of the Fourteenth Amendment.

In a later case, the Supreme Court affirmed the previous decision, rejecting "quotas" as unlawful, but allowing race to be one "factor" in college admissions to meet the compelling interest of "diversity."

The University of Michigan Law School had a more obvious racial quota-based student admission program, aimed at achieving minority enrollment roughly proportional to their percentages of the general population.

Admissions officers awarded points for assorted characteristics and achievements, with 100 the usual threshold for automatic admission.

A perfect SAT score was worth 12 points. Being black, Hispanic or American Indian was good for 20. Being white or Asian was good for nothing.

This also went to the Supreme Court (Grutter v. Bollinger). And writing for the 5-4 majority, Justice Sandra Day O'Connor said that the subtler, more hidden quotas of the law school were permissible.

The court ruled 6-3 against the more obvious racial quotas used by the undergrad school (Gratz v. Bollinger).

It is a public benefit to break the cycle of discrimination that has held back large numbers of our population.

But to be unfair in order to be fair is a burden on logic.

This conundrum has not yet been solved.

Robert L. Sharp grew up in Linden (population 1,000) and spent most of the following 30 years as an international banker in Asia including four years as a Naval officer in that part of the world.

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