Is The “Product” Of Affirmative Action Presumptively “Incompetent?”

In the aftermath of the Supreme Court’s decision upholding the U. of Texas affirmative action plan, I wanted to post a reader’s comment.

In my “Alert” last week I quoted Reuters which had just reported that “The U.S. Supreme Court on Thursday upheld the practice of considering race in college admissions, rejecting a white woman’s challenge to a University of Texas affirmative action program designed to boost the enrollment of minority students.”

I received a single reader comment (on LinkedIn), from Eduardo Vidal, a self-described Miami executive, general counsel, and Volunteer of the Rapid Response Team of Ted Cruz For President 2016.  He wrote:

“The only reasonable response based on the empirical evidence, of any employers, clients and others who might contract with the products of affirmative action, is to adopt a rebutable [sic] presumption of incompetence.  This presumption may be rebutted by the evidence, but it is the only reasonable way to approach this question.”

My question is:  “Products?”  What is a “product” of affirmative action?   Grapefruits?  Corrugated boxes?

Question Mark, Question, Response

Does it mean — “people?”   Why the dehumanizing “products?”

And why are these “products” presumptively incompetent?    Is not a Supreme Court justice such a “product” of affirmative action, even if he is  still irked by that fact 50 years later, enough so that he would deny others the same opportunity to be “products?”   Maybe besides being a “product,” the Justice is also the embodiment of  “a presumption rebutted by the evidence?”

I’ve written a lot about coded language in employment discrimination, and – yes – dog whistling.  While this comment is not particularly “coded,” nonetheless in this election cycle, now that the old, frayed mask of “civility” has been discarded in favor of “telling it like it is,” why the continued need for a dog whistle?   With the remaining veneer of civility yanked away, the dog whistlers are now free to come out of the closet and reveal themselves.


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]