White Affirmative Action

I wrote this op-ed for the Denver Post* after we got a flyer under the door of our law office.  It was published on January 18, 1998.  Given that we have just recently been treated to the clownshow of a white Supreme Court justice announcing that African-American students would be better off in “less-advanced” or “slower track” schools, rather than the University of Texas, I thought it would be fun to re-run this.  The Post called it “Clear the bench (and bar) of privilege.”  I thought of titling it “Gimme a Fucking Break,” but went for the more descriptive “White Affirmative Action.”

We recently received — under the front door of our law firm’s office, sans postage — an interesting missive announcing the organization of a group called VICTIMS OF AFFIRMATIVE ACTION (all caps in the original).  This group (we’ll call them VAA) opposes affirmative action  — from context, the race-based variety — and proposes to shed light on “the appointment of lawyers holding unmerited law degrees to the federal court bench” (underline in the original) and to “deny . . . admission of scholasically unfit ‘minorities’ to law schools.”  The letter concludes by asking for our “assistance, financial or otherwise.”  I choose “otherwise” and offer my invaluable assistance through the formation of what VAA will surely recognize as an important allied organization:  VICTIMS OF PRIVILEGE AND NEPOTISM.

VAA argues that their group is necessary because they have found at least two black judges they claim are unqualified for the federal bench:  one because the judge invented a story about his youth in Mississippi; the other because the judge — at the trial court level — had no previous judicial experience.  (The letter does not mention the law board scores, law school grades, scholastic honors, professional experience or judicial competence of either man.) This got me thinking:  In my ten years of legal practice, I have encountered not only a few incompetent white judges but scores of incompetent white attorneys and I have begun to suspect that these lawyers, too, are the recipients of unmerited law degrees.

To remedy this situation, VAA will have to agree, will require our new group to deny law school admission to scholastically unfit white applicants who rely on such illegitimate factors as where their parents went to law school, who their parents know in the admissions department, or how much money their families have contributed to the school over the years.  Also in our cross-hairs will be such system-abusers as white kids with lower-than-acceptable scores who try to get admitted based on international travel, internships with friends of the family, political work with same, and other life-enhancing experiences open only to those of wealth and connection.  Practicing lawyers who were admitted to law school based on any of these factors must be deemed to hold “unmerited law degrees,” right VAA?

And it doesn’t stop with law school.  We’ll also have to get rid of any white lawyer who got his job because he or his parents knew someone at the firm, because his family attended a church or country club with one of the partners, or because the supervisor from a previous — nepotistically-acquired — job made a recommendation.  Any white judge appointed based on political connections developed through contact with other privileged white lawyers or contributions to the campaigns of privileged white senators cannot be considered qualified to serve.  Finally, of course, any white lawyer who has received the benefit of the doubt based simply on having white skin, good clothes or a standard accent or because a boss or judge of the same ethnic background felt “comfortable” around him — where an equally talented minority lawyer would have been passed over — must step aside.

Well, I’m outta here.  And so are most of the white lawyers and judges I’ve worked with over the years — the good, the bad and the ugly.  Truth is, it is we who benefit from affirmative action and always has been.  Sure merit matters — that’s why we have a bar exam.  But if we think merit was ever all that mattered or that affirmative action was invented in the 1970s to assist minorities and women, we are living in a fantasy world.

We white people have been enjoying the fruits of affirmative action ever since a white skin was all you needed to not be enslaved.  Even after discrimination was declared officially illegal, our prospects in the school-admissions and job markets still benefit overwhelmingly from affirmative action through nepotism, connection, economic privilege and — above all — the largely subconscious sense of most white bosses and faculty that we are like them, that we fit in, that they are comfortable around us, or that we remind them of their kids.  Affirmative action that favors minorities — both the type that requires outreach to non-white populations and, on a larger scale, the type that keeps an eye on the numbers — is necessary and will be until our economy and workforce are sufficiently diverse that the affirmative action working against minorities has faded away.

So whaddya say, VAA?  Are you ready to address the plight of all VICTIMS OF NON-MERIT-BASED SELECTION PROCEDURES?  We’d like your assistance  . . . but skip the “otherwise,” I’ll take financial assistance.

The Post asked me to add a one-sentence biographical description.  I chose confession and tribute:

Amy Farr Robertson is a Denver lawyer who graduated from Yale Law School 28 years after her father, who taught her to appreciate all the ways she has benefited from affirmative action.


*The link will make you pay $2.95 to read the above.

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