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Cupcakes, affirmative action and mass incarceration

Jonathan Simon, professor of law | September 28, 2011

Yesterday Berkeley’s College Republicans were generating big crowds on Sproul Plaza and big media coverage with a retread of an old bit of anti-affirmative action agit-prop; a cupcake sale in which prices were set by race (just like academic “preferences” for students of color in admissions, get it). (Read Nanette Asimov’s reporting in the SF Chron here.) There was already a large crowd of counter-protesters and reporters on hand by the time I rolled my bike onto campus, otherwise I might have fought my way to the BCR table to buy a half-a-dozen or so.

I’ve always thought affirmative action was a hugely good deal for America (especially white Americans); purchasing, at a very small price, a modicum of legitimacy as it seeks to lead in a world awash in diversity and in the governance of a tremendously unequal and coercive society at home.

However I was disappointed that my fellow progressives mostly fell into predictable response patterns; denouncing any opposition to affirmative action as racist, trying to explain why price discrimination (which of course is a routine feature of our society, try “buying” a loan if you are living in a traditionally Black or Latino neighborhood) is wrong but affirmative action is not, or claiming to have suffered emotional injury by the BCR’s tactics. The right loves talking about affirmative action. It’s a winning “wedge” issue for them.

An alternative would have been actions focused on California’s mammoth prison system and the vast network of sentencing laws that keep it filled largely with people of color (laws which Republicans have supported with unbridled enthusiasm).

If College Republicans are offended by educational admissions policies that allow race and gender to be considered as part of a holistic individualized look at the application, what do they think of a state run system in which virtually every aspect of life from cell assignment to job assignment to who cuts your hair is determined by race? Do they support laws that guarantee a steady flow of admissions to prison of largely men of color, with little regard for the individual culpability or danger? Where is their outrage for a state that cooperates in handing prisoners over to racist prison gangs so they can return to their communities scarred by racist ideologies, bound into criminal networks, and shadowed by real and imagined enemies?

This system, which has been repeatedly condemned by the right-leaning U.S. Supreme Court, has become a vast sink hole into which the states fiscal and moral capital has been poured, and California’s Republican legislatures have demanded to keep digging. The truth is that whatever you think of affirmative action in college admissions, it’s a tempest in a teapot compared to the category-five hurricane of mass incarceration which threatens the health of this state in every sense.

That message would also have put students on the side of thousands of California prisoners who are beginning a hunger strike this week to demand the most basic and humble of human rights. The right not to be confined in isolation from any meaningful activity for years or your entire sentence. The right to have your fate determined by laws and due process rather than invisible administrative judgments. The right to nutritious food, and to not having food used as a punishment. (Read their five core demands here).

Cupcake anyone?

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

Comments to “Cupcakes, affirmative action and mass incarceration

  1. Herp derp. They’re prisoners. They should not be afforded all of the same rights as free citizens.
    And race doesnt have to do with it. It is more likely economic status that leads to prison populations that are increasingly filled with minorities.

    Sincerely yours,
    a 16 year old who is smarter than you.

    @Frank: You serious? China has a ton of prison camps and stuff they dont tell you about. And that statistic of the US having 25% of the world’s incarcerated is most likely wrong. And harsh penalties? The penalties don’t matter; the offense does. Don’t commit the crime if you don’t want to face the consequences. Honestly I would be all for life imprisonment for those offenses.

  2. Regarding the mass incarceration issue, I recommend “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” by Michelle Alexander. It is a very interesting discussion of this tragic problem.

  3. I recognize, truly, that white males are the cause of all the world’s problems, which is great to believe because it makes it so much easier for some to adopt and maintain a victim self-view. Trouble is, victims get stuck thinking they are powerless and that someone else needs to change for their lives to change. In addition to addressing the back-end access-to-higher-education issues, wouldn’t it make sense also to address issues on the front end of the education path, like children-having-children, fatherless families, and not perceiving education as important? Wouldn’t it?

  4. After reading all of the above postings I could not help but think of the quote, “let them eat cake.” Whether Marie Antoinette actually did say this or not, the idea is still the same: Privilege brings with it the power of control, which can blind. Control does just that – controls.

    Economic exchange and the ability to provide for ones self and family are at the center of human existence. How is it not clear to some that our society was built predominantly on inherited wealth of (not only money, but various built-in support systems i.e. familial ties which alone, open many doors that are closed to others) privileged inheritance? We are a “systems” society. Does it not make sense that our “systems” were built with the frame work of privilege? There are built in societal systems for both the poor and wealthy. Just because a person does not experience their social wealth explicitly, does not mean it is not a reality. If one has it and reaps the benefits of it, but did not directly build it, maybe would make sense that they my not see it. It makes sense that one may not understand it as a reality. However, for those who were not born into systems of privilege, they understand all too well the enormous road blocks that exist in a society that was build on a foundation of privilege and thus, control.

    Look down at the ground you are standing on, you know at Sproul or the amazing steps in Wheeler hall. Did you build it? Do you know exactly how it was built or everything that went in to building it? Probably not, but you benefit from it.

    What other things and systems do you not explicitly see of think about because they are a normal part of you day-to-day, but that you are benefitting from? Just because you did not build our social system directly you benefit from it and participate in its maintenance.

    Think about it. Consider it.

    Thanks, but I don’t want cake, I just want an education.

  5. Did it ever occur to you that blacks commit more crime? Did it ever occur to you that your progressive policies created the environment that makes blacks more prone to welfare, poverty, unemployment and criminal behavior?

    Has it ever occurred to you that the very people who you have elected to “lift you up” from slavery have just put you back in the chains?

    Come on man…you can’t even buy a clue. It’s all there in BLACK and white. Stop drinking the cool-aid provided by your masters and overlords and think for yourself. You are railing against the wrong thing. You are fighting the symptom of your illness…not the disease.

    The disease isn’t racism you fool…it is your response to the fantasy of racism. White America doesn’t care that your black. The only people who care are the Socialist, Democrats, Progessives and Communist who want to control and use you. Jesus Christ dude…stop. Open your eyes. Open your ears. Read a book that wasn’t published by the same propaganda machine that has enslaved you. Break free.

    You are a man. A human man. You do not require the special treatment of another. You are not the responsibility of another. You are not a slave. Stand up. Be responsible for yourself. Tell the master and the overlord you can make it on your own and do not need special treatment or his government cheese.

    Jesus you are as Lenin says…a useful idiot.


    Oh, one last thing…don’t worry slave…sooner rather than later, all of us will be slaves on the government tit right there with you…so if you don’t stand up, you’ll have plenty of company.

  6. It’s a bumper-sticker slogan, but germane to Professor Simon’s point—“If you think education is expensive, try ignorance!”

    If you’re looking for irony, look no further than the self-satisfied, privileged whites who want to deny opportunity (and funding) to others who don’t look like them, without realizing that education for all benefits the entire society.

    Would you rather have children of poor means get a shot at a worthwhile career and contributing to society, or have them pushed to the margins of criminality and the cycle of hopelessness and violence that leads to incarceration? I say the social good is too precious to be mocked in the way Berkeley College Republicans (BCR) chose. They don’t even realize the extent of their own privilege.

    The thing I found most offensive about BCR’s spectacle in this post-affirmative action era political climate, was the conflation of race diversity with ability to afford to attend UC for otherwise qualified students. The climbing cost and lack of affordability is an increasingly bigger fulcrum than the perceived “preference” of non-whites. I don’t see BCR showing up on the serious lobbying against service cutbacks and fee increases.

    The class issue is covered up by the mish-mash of affordability across ‘races’ and the fact that the Republicans aren’t really speaking up for those who lack means, or for more resources for all the public universities in the state. In fact they are cutting those resources and have lavished money on prisons. Not only are such priorities backwards, they signal comfort with our ostensibly public institution becoming more elitist—in fact they champion denying opportunities to others.
    And as the professor points out, that elite sense of entitlement has a flip-side about where people of color ‘belong’. They are okay with the criminalization of people of color.

    Finally I can’t resist a word to “Dan” who—presumably observing from outside—raises the oxymoron of Cal consisting of “half minorities.” He might possibly be referring to the clunky label of Asian/Pacific Islanders in the world of slice & dice categorization, which, notwithstanding the fact it cuts a huge swath across peoples and nationalities, is the largest plurality of students on campus. But there is no majority of any category. I read Dan’s comment to mean that, like others in BCR, if whites are not a majority, he’s not comfortable.

  7. WOW John either u are incarcerated and using up public band width or u spend 2 much time with cons. Short story for ya brother in the 90s I screwed up and spent some time with the DOC I figured it out and do very well now. the people in there will kill u for a stamp lie 2 u for 5 minutes of non and burn u alive if U don’t hold true 2 whats right today. but u can believe whatever u want. I just hope that none of the $20213.00 I paid in Taxes last year in any way paid for your salary or teaching u how 2 use the English language so deceptively

    PS sleep there a few nights then defend them
    LMAO and yours

  8. The real issue is that they got it backwards. To fairly represent the world as it is, the price for whites should have been the lowest with the price for blacks the highest. Who is first hired last fired? Who is most likely to be charged a higher interest rate on a mortgage? Be paid less at for equal or better work? Who was set up to lose the largest percentage of wealth by ethnicity in the foreclosure “crisis?”

    For those who would love to see slavery reinstituted (and make no mistake, that is part of the “agenda” of the radical right) you will never make it happen. Do your really think you can make blacks go back to work in the fields when you have eliminated all undocumented immigration? And for the pittance you’ve been paying Central Americans? I think the best argument for ending illegal immigration is the end to food related health disorders (diabetes, obesity, etc.) all of which are the result of overly cheap food based on cheap immigrant labor.

    • “Do your really think you can make blacks go back to work in the fields when you have eliminated all undocumented immigration? And for the pittance you’ve been paying Central Americans?”

      Somehow this comment makes me think of who you are likely to see standing on a corner trying to sell something (working) and who you are likely to see standing on a corner drinking out of a brown paper bag. Maybe the Republicans are right when they tout the word “values.” Maybe values they do matter.

  9. Giving preferences in the college admissions process should be tied to economic criteria, which without question adversely affects ones likelihood of academic success, instead of tying such preference to factors such as race or ethnicity, which may or may not have any real adverse effect on academic performance.

    This approach is fair to all, except admittedly to the well off (who need and deserve no extra help), and would take the wind out of the sails of the opponents of preferences. A wealthy African american or wealthy Latino has sustained no real or significant academic neglect which requires remediation through special preference. A poor and academically deprived white, black, Asian, Latino or other minority student has indeed sustained such neglect, with a high degree of statistical correlation.

    The bake sale and the counter-protest should hopefully evoke further discussion and thinking on campus and beyond about the issue and hopefully will lead to more rational academic policies which would help reduce the political rancor surrounding the affirmative action or perhaps better put, the academic preference issue. Berkeley continues to play a significant role the political development of our state and nation. Bravo!

  10. Please let me know which laws should be changed so that people of color are no longer breaking laws. Also, once that initial package of lawbreakers is released, lets run this list again so that we don’t miss any laws that people of color have broken – those are obviously bad laws. Lets just stick with laws that only the white people break!!!

    Holy shit!! This is what the progressives want?

    No wonder we are becoming a society of the lowest common denominator. Once enough people break a law, we recind it – ain’t America great?!?

  11. While America the land of the free makes up only 4.5% of the worlds population, it incarcerates 25% of the worlds prisoners.And no state is better than California when it comes to draconian laws to lock up it’s citizens. Take Three Strikes, which metes out a minimum sentence of 25 years to life to some 690 drug users,350 shoplifters and several thousand other petty criminals.

    While affirmative action might seem unfair, I honestly don’t feel it as Un-American as mass incarceration of the poor, the addicted and the mentally ill! Three Strikes affects African Americans at 14 times the rate of whites. If students really want an unjust cause to protest, it’s called California’s Three Strikes Law!

  12. This line of reasoning seems to me to be a bit of a red herring (specifically “Tu quoque” if I’m reading Wikipedia correctly). Its seems like this type of fallacy is all too common in modern politics, but hey what do I know? You’re the law professor… (I think that one would be “argumentum ad verecundiam” – appeal to authority)

  13. The most ironic thing about the protest that it happened at UC Berkeley.

    Liberals always whine about how the current educational system favors whites and disadvantaged minoritues yet when you look around the UC campus, it’s pretty much half minorities

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