An Old Speech of Mine on Affirmative Action

For those of you interested in what I really think about affirmative action, here is the text of a speech I gave at Yeshiva University back in 2003 as part of a contest. I ended up coming in fourth place, just missing out on winning prize money. This speech was given while the Supreme Court was hearing the Michigan cases of Gratz v. Bollinger and Grutter v. Bollinger on affirmative action. The argument I offer follows a similar line of reasoning to what I offered in regards to Aryan coffee. We cannot even begin to talk about a government interest in diversity unless we also admit a government interest in conformity in which case we are trapped into accepting segregation as at least having a plausible legitimacy.


A key corollary to the fourteenth amendment is title VI of the 1964 Civil Rights Act. According to Title VI: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." As Senator Ribicoff explained it: "Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction." This sentiment was endorsed by Justice Powell in the Bakke the decision. Bakke has recently come back into the public eye. This past month the Supreme Court has heard two cases involving the issue of Racial preferences in regards to University admissions: one involving the University of Michigan's undergraduate admissions policy (Gratz v. Bollinger, 02-51), and one involving the University of Michigan's law school admissions policy (Grutter v. Bollinger 02-241). These are two very different cases. In Gratz, the undergraduate case, there is a point system, in which prospective students are given points based on such categories as where they live and how they scored on various tests. In one of these categories, twenty points are awarded to prospective students who are either athletes, come from impoverished backgrounds or are a part of specific minority groups. In Grutter, the law school admissions case, the University simply has a stated policy that it should tailor its admissions program in order to achieve a critical mass of minority students within its classes.

The argument in regards to these cases is not about whether Michigan is in violation of, at the very least the letter, of title VI. The ACLU, which has written an amicus curiae brief in support of the university, claims though, that Michigan's admissions policy is a compelling state interest since it enables the University to have a diverse student body. I ask on this; if the state, or the institutions that it funds, has the right, even the duty, to ignore title VI out of a compelling interest in diversity, as Michigan, the ACLU along with over sixty other organizations are claiming, then cannot the state also choose to ignore title VI out of other compelling interests? Diversity certainly is not the state's only compelling interest.

America, if you think about, is in a sense, for better or for worse, the great experiment in conformity. Crucial to American Civics is the notion that we are going throw Italians, Jews, Poles, Germans etc. together onto our golden streets and everybody is going to somehow turn into Americans. We generally call this phenomenon "the Melting Pot." If one can claim diversity to be a compelling state interest then certainly one can also claim that the venerable melting pot of conformity is also a compelling state interest.

Once states can get around Title VI by claiming a compelling interest in conformity then Title VI becomes absolutely meaningless. What would happen IF the University of South Carolina would decide that in keeping with its compelling interest in having a student body that conforms, the University will from now on tailor its admissions policy in a manner designed to avoid achieving a critical mass of minorities on its campus? What if South Carolina were to decide to give white applicants, along with athletes and students from impoverished backgrounds, an extra twenty points on their admissions scores? On what grounds could the University be legally stopped? Not Title VI, for the University can claim to have a compelling interest in ignoring title VI.

What the compelling state interest argument ignores is the fact that the body of Civil Rights legislation came about in order to get around the claim that the institutions of slavery and segregation were compelling state interests. The fourteenth amendment and title VI only make sense if we accept the words of Justice John Marshall Harlan, the lone dissenter in the Plessy vs. Ferguson. "Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved." The colorblind constitution is the only for the just and free society to triumph over the claims of compelling state interest.

Luther Wanted to Burn Down Synagogues But He Was Not an Anti-Semite

I spoke about Martin Luther the other day. I asked my Hebrew Academy students to define anti-Semitism and whether Luther was an anti-Semite. (As an early modernist, one of my personal goals is that after a year of my class my students, when they hear the name Martin Luther, should not think of a black preacher with a dream but a fat, beer-drinking German.) Almost every one of my students defined anti-Semitism as hating Jews. They also all saw Luther as an anti-Semite. I sympathize with my students’ feelings. When I was younger I agreed with my students. In my ninth grade history class, I called Luther a bum. The history teacher, Mr. Jesse, responded that he was a Lutheran. I guess you can say oops. (Mr. Jesse was the perfect middle school teacher. He was physically intimidating as in over six feet tall, built like a brick wall, yelled, and threw stuff. He also had a basic command of the material, was a genuinely likable person, and had a great sense of humor.)

There are certainly good reasons for viewing Luther as an anti-Semite. After taking a fairly positive attitude toward Jews early in his career, Luther turned on Jews with a vengeance in On the Jews and their Lies (1543). Luther advises:

First, to set fire to their synagogues or schools and to bury and cover with dirt whatever will not burn, so that no man will ever again see a stone or cinder of them. …
Second, I advise that their houses also be razed and destroyed. For they pursue in them the same aims as in their synagogues. Instead they might be lodged under a roof or in a barn, like the gypsies. …
Third, I advise that all their prayer books and Talmudic writings, in which such idolatry, lies, cursing, and blasphemy are taught, be taken from them.
Fourth, I advise that their rabbis be forbidden to teach henceforth on pain of loss of life and limb.
Fifth, I advise that safe-conduct on the highways be abolished completely for the Jews. For they have no business in the countryside, since they are not lords, officials, tradesmen, or the like.
While this aspect of Luther was mostly ignored until the twentieth century, the Nazis made use of Luther, viewing him as a precursor of theirs. The modern Lutheran Church has officially rejected all statements of Luther’s regarding Jews.

I believe that it is important that for anti-Semitism to mean something it has to mean something more than hating Jews. The English hate the French and vice versa. At Ohio State, we have a Hate Michigan Week every November. Pretty much every group on the planet has been hated by someone else, has been the subject of bigotry, discriminated against, and even on occasion killed. Anti-Semitism is something beyond that. Jews are unique in the sort of hatred they have consistently evoked in so many different places and people. What other group of people has something to compare to the blood libel or the Protocols of the Elders of Zion, one of the best-selling books of the twentieth century? The Nazis hated lots of different groups of people yet there was something about the Jews that made them a special target. For example, the German war effort in 1944 was literally sabotaged in order to massacre Hungarian Jewry. So anti-Semitism is not just people hating Jews but people having a pathological hatred of Jews, a hatred of Jews that goes beyond reason.

When dealing with Christian-Jewish relations it is important to distinguish between Christians who were hostile to Jews for what they were and a Christian hostility that went beyond all reality. Let us be clear, medieval Jews were heretics, unbelievers, and blasphemers, who hated Christians. Toldot Yeshu was accepted as fact by Jews. They believed that their ancestors really did kill Jesus and were proud of it. To them, Jesus was a bastard, a heretic, and a magician while the Virgin Mary was a whore. From this perspective, Luther was being perfectly reasonable. All his accusations were things that Jews would have admitted to. Jews cursing Christians was a fact. When Jews, in the sixteenth century, said the curse for heretics in the eighteen benedictions they meant Christians. It was a fact that Jews referred to Christians as goyim. Jews called Jesus the ‘hanged one.' Jews practiced usury. Luther refers to the blood libel accusations. He was agnostic about these charges but argued that Jews hated Christians enough to murder Christians. Again this was a very reasonable assumption.

Luther was a polemicist, who wrote in an aggressive manner; even by the standards of the day Luther’s universe was highly Manichean one, sharply divided between the saved and the unsaved with no grey area in between. It was not just Jews whom he believed to be satanic. He believed that the Catholic Church and even fellow Protestants who disagreed with him were also of the Devil and going straight to Hell. So there was nothing particularly anti-Jewish about his demonization of Jews. The fact that they were Jews was incidental to the fact that they were people who disagreed with him.

In the pre-modern period, all government authority was inherently religious. It was assumed that it was God’s will that a certain person rule. Because of this, there was, almost by definition, no such thing as a non-political religious claim. Every religious claim had political implications and anyone who went against the established religion was by definition engaging in political subversion. For example, if God is not a Catholic then God clearly would not want the Catholic Charles V to rule over his German people and take care of their spiritual welfare like he has the Pope look after their spiritual welfare. Therefore anyone who was not a Catholic in early sixteenth-century Germany was implicitly advocating for the overthrow of Charles V. Because of this it is impossible to ever accuse a pre-modern, Luther or anyone else, of being intolerant of other religions. Luther was perfectly in his rights to advocate the use of violence against Jews or any other religious subversives just as we accept the legitimacy of the use of violence even today against political traitors. And in fact, Jews got off much easier than Luther’s Christian opponents. Luther explicitly warned against directly harming Jews. The fact that Luther only wanted to destroy Jewish property, interfere with the ability of Jews to earn a livelihood and practice their religion while at the same time advocating physical violence against Catholics and Anabaptists begs the question not why Luther was hostile to Jews but why he was not more hostile to them. One suspects that it had something to do with his strong Augustinian leanings.

In conclusion, I do not think it is accurate or helpful to view Luther as an anti-Semite. He was an active opponent of Judaism which is nothing remarkable as to be a Christian, unless you are a very liberal one, requires that one be at least a passive opponent of Judaism, along with every other religion. Luther’s opposition to Judaism was internally consistent. His accusations against Jews are all grounded in solid fact; there was nothing fantastical about them. He took these things to their logical conclusion and endorsed a very reasonable sixteenth-century solution to the problem. Jews today do not have any legitimate grounds for any personal animosity against Luther himself let alone to use Luther as a polemical club against modern-day Lutherans.

George Will and Ohio State Ticket Scalpers

George Will, one of the great defenders of capitalism, has an article, “Greed’s Saving Graces,” arguing for the self regulatory powers of unregulated markets. He discusses in particular the issue of ticket scalping. Of interest to Ohio State fans, Will uses the case of the Ohio State versus Penn State football game last year. I was one of those people trying to get tickets in the weeks before the game. The game was at Ohio State and was being played on Saturday night, unlike most college football games which are played on Saturday afternoon. As a graduate student I did not have several hundred dollars to pay for a ticket so it was the apartment building lounge for me. For those of you who are not Ohio State or Penn State fans, Terrelle Pryor, Ohio State’s new superstar quarterback blew it in the last few minutes and Ohio State lost 13-6.

I have mixed feelings about ticket scalping. As a believer in free markets I am inclined to oppose any attempt to regulate ticket scalping; ticket scalpers are just the free market at work. The problem, though, is that it is in the interest of both fans and teams to keep the price of tickets depressed below market levels. This helps the pocket book of your average fan as they usually do not have hundreds of dollars to spend on a sporting event. As for the teams, they need to cultivate a fan base and that means creating fans while they are still young. People tend to become fans of teams, particularly of the sort willing to spend hundreds of dollars, because they were taken to games when they were children. If teams do not make it economically feasible for parents to come to games with their children they are committing long term suicide.

Tickets to sporting events are freely entered contracts between parties. As a free economic entity, sports teams have the right to stipulate terms to the contracts they sign with ticket buyers and this can include stipulations against reselling to ticket at above marked prices. Since the enforcement of contracts is a legitimate function of government, the government is perfectly justified in aiding sports teams by going after scalpers.

At the end of the day I recognize that this is not going to be a plausible. It is too difficult to regulate scalpers; the market interests are just too strong. If scalping is ever to be brought down it is going to have to be the society of fans. To bring this back to Ohio State, we Ohio State fans are a community so we should look out for eachother. We know that there are only a 105,000 seats in the Horseshoe; any ticket you buy means some other fan does not get to go. If you pay above marked prices for tickets you are taking a seat away from a fan who does not have that kind of money. Furthermore you are hurting every other fan because you are encouraging scalpers to grab more tickets thus forcing other fans to pay higher prices. Any Ohio State fan that does this is therefore not real fan. Buying scalped tickets is something that Michigan fans stoop to.

Ohio State’s History Department’s Ranking

In a previous post I mentioned that Ohio State has a very good history department. According to U.S. News and World Report, Ohio State’s history department ranks twenty-fourth in the nation with a score of 3.8. To my chagrin, though, Michigan’s history department actually ranks seventh right along with Columbia. Of course for graduate school what matters is finding a professor to work with and I could not be happier working with Dr. Matt Goldish.

Columbus is the Champion (in Soccer)

Yesterday the city of Columbus won its first major league professional sports championship, as the Columbus Crew defeated the New York Red Bulls 3 - 1. Granted this was in soccer, but I will take it anyway. Not that most people here could care less. The Crew winning the MLS championship is not nearly as important as the Ohio State football team stomping all over Michigan 42-7. Michigan may have been lousy this year, not even eligible for a Bowl game, but be as it may there are certain sports priorities around this town. I actually went to one of the Crew’s games during the summer and bothered to tune in to watch the championship game on television so I guess I can count myself as a fan.

During the broadcast of the championship game, the announcer said something very interesting about New York’s goalie, Danny Cepero. Cepero was actually their backup goalie, who ended up having to play for them at the end of the season after their starting goalie, Jon Conway, was suspended for using illegal substances and ended up carrying the team through the playoffs. Cepero is still a student at the University of Pennsylvania. Apparently Cepero is a history major and spent the day before the game working on a paper for school on post World War II England. All future students of mine should be forewarned; you have no excuse. If Cepero could work on a history paper the day before appearing in an national championship game I think you can make the time despite anything that life may throw you.