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In the University of Michigan Law School case, the Supreme Court licensed the use of racial discrimination in admissions, but left the license’s term of years vague. “We expect that 25 years from now, the use of racial preferences will no longer be necessary,” wrote Justice Sandra Day O’Connor. Actuarial considerations suggest that many readers will not be around to see whether the high court’s expectation is vindicated, or whether the 25-year term will require extension. But there is no need for suspense. The outcome is certain. Unless human nature undergoes a fundamental transformation in the next 25 years, the court will have to extend the term of the license. Left to their own devices, racial and ethnic groups will never achieve the “critical masses” allotted to them. Instead, in their stubborn, bothersome, idiosyncratic way, these groups will continue to flow in and out of work areas in wildly disproportionate numbers, sometimes missing, sometimes exceeding, rarely if ever meeting, their appointed shares. If the government aims to shape society along prescribed numerical lines, 25 years is not enough time. They will have to remain in the business forever. The Supreme Court has ruled that state institutions of higher learning may discriminate racially to ensure that minority groups achieve a “critical mass.” The court never defined the term, other than to cite with approval the testimony of Michigan’s director of admissions. She understood “critical mass” to mean “a number that encourages underrepresented minority students to participate in the classroom and not feel isolated.” But, as Chief Justice William Rehnquist pointed out in his dissent, Michigan established very different “critical mass” levels for different groups. The “critical mass” for blacks was six to eight times larger than the critical mass for American Indians. Either Indians are less susceptible to feelings of isolation than blacks, or the “critical mass” rationale is a facade for racial quotas. By a not very surprising coincidence, the disparity in the size of the two groups’ respective critical masses roughly corresponds with their respective shares of the general population. This suggests that the real rationale for the court’s holding was the principle of proportionate racial and ethnic representation. The court first articulated that principle in 1977 and has reiterated it several times since: “It is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population.” Will they? History suggests otherwise. The court needed to look no further than its own composition and its own profession to see the fallacy of proportionate representation. Jews make up about 2 percent of the general population. Currently two justices, or 22 percent of the court’s membership, are Jewish. The disproportion is even more pronounced outside the court. According to separate findings by Charles Silberman and Euguene Volokh, about 26 percent of the nation’s law professorships are held by Jews. At elite law schools the number is 38 percent. About 30 percent of the Supreme Court clerkships are held by Jews. It is difficult to explain this disproportion. For the first half of the 20th century, Jews were underrepresented in the legal profession and overrepresented in garment manufacturing, entertainment, boxing and organized crime. Before World War II, Harvard Law School had a Jewish faculty quota of one. After Felix Frankfurter’s appointment, Harvard waited 25 years before hiring another Jew. In the spring of 1936, when eight Jewish editors of the Harvard Law Review had failed to find jobs, Frankfurter wondered whether Harvard ought to warn Jews that they entered the school “at their own risk of ever having the opportunity of entering the best law offices.” As recently as the 1960s, Jews were excluded from the partnership ranks of the nation’s top “white-shoe” law firms. When the barriers fell, Jews rushed in in numbers far exceeding any appropriate critical mass. But the most interesting aspect of the Jewish experience is its commonality. To paraphrase the old advertising slogan, you don’t have to be Jewish to be disproportionate. Throughout our history, racial and ethnic groups have picked different “mobility ladders” to ascend economically, and they have grabbed the rungs in complete disregard of their appropriate demographic share or critical mass. According to Stanley Lieberson’s “Piece of the Pie,” Irish immigrants were three times more likely than other immigrants to become police officers or firefighters, Italians were eight times more likely to become barbers, and Russians were 17 times more likely to become tailors or furriers. That historical trend continues today. Racial and ethnic groups, for reasons that defy easy sociological or historical explanation, gravitate to employment niches in disproportionate numbers. Cambodians own 90 percent of California’s doughnut shops. No one seems to know why. According to one entrepreneur quoted in AsianWeek: “It is odd that Cambodians are doing this work — considering that most Asians don’t eat doughnuts and prefer noodles or other Asian foods.” The trend appears to have begun in 1976 with the influx of refugees from the communist takeover. Dennis Wong, of the Asian Business Association, notes: “Italian immigrants are often working with restaurants, Indians with newsstands and hotels. With Cambodians, it happens to be doughnuts.” Other groups dominate other business areas. About 95 percent of the nail salons in the Sacramento area are owned by Vietnamese. In recognition of this dominance, the State Department of Consumer Affairs’ Barbering and Cosmetology program recently added manicure licensing tests in Vietnamese. These examples of disproportionate racial and ethnic representation are not aberrational. In their 1997 study of U.S. Census data, James Allen and Eugene Turner of California State University at Northridge found many such niches in the Southern California work force: Japanese and Chinese men in electrical engineering; Armenians, Iranian and Asian Indian men in civil engineering; Chinese women as general administrators, aerospace and electrical engineers, and computer system analysts; Filipino women in nursing. Numerically, some of these niches are striking. Chinese women are represented as computer programmers and pharmacists at seven times the rate of women in general. Asian Indian women are physicians at 10 times the rate of all women. Vietnamese women are electronics technicians at 14 times the rate of women in general. Armenian men are 16 times more likely to be in the jewelry business than the general population. Korean men are 16 times more likely to own liquor stores; Filipinos are four times more likely to be in the U.S. Navy; Samoans are four times more likely to be in the detective and protective services. Allen and Turner found that ethnic work niches are not just transitory phenomena. As immigrant groups master the English language and gain experience, rather than spreading out into different occupations in proportionate numbers, as the Supreme Court seems to expect, these groups instead move from lower-paying niches into higher-paying ones. “As long as people compete for jobs and ethnic identity plays an important role in determining social networks of advice and support,” they conclude, “ethnic work niches will exist.” No sociologist, civil rights attorney or federal judge could have predicted the Cambodian domination of the California doughnut industry or the Vietnamese domination of the nail salon business. For all the lip service paid to “diversity,” they really don’t believe that human beings are diverse. Instead, they see people as interchangeable and fungible. The truth is that human beings are diverse and unpredictable. Their brains bear the imprint of different histories, experiences, attitudes and, yes, prejudices. In the incredibly complicated mosaic that is the American work force, the Supreme Court’s vision of proportionate representation, where each racial or ethnic group attains at least a “critical mass,” is unrealistic. The most a wise and benevolent government can do is to remove all barriers to advancement and vigorously enforce the anti-discrimination laws. Then stand back and let the chips fall where they may. They will not fall evenly. Contributing Writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs, specializes in intellectual property law. He can be contacted at [email protected] .

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