Seeking racial numbers

Wisdom of the week

[Reprinted from Issues & Views May 20, 2002]

In March 2001, U.S. District Judge Bernard Friedman ruled that Michigan University's law school could not continue to use race and ethnic preferences in its admissions policies. He reasoned that diversity was not a "compelling state interest" and a race-conscious decision could not be used to correct the mistakes of past discrimination.

This year, however, on May 14, the Sixth Circuit Court of Appeals, by a 5-4 vote, overturned Judge Friedman's decision, ruling that race can be used in determining admissions. This case, brought by white plaintiff Barbara Grutter, who is represented by the Center for Individual Rights, is considered important because, if the U.S. Supreme Court grants a writ of certiorari and hears the appeal, the case could have as much significance as the 1954 Brown v. Topeka Board of Education case, where "separate but equal" education was ruled unconstitutional.

One of the four justices who ruled against the majority and against the use of race preferences was Judge Danny Boggs, who issued a lengthy and compelling dissent. Here is some of what Judge Boggs had to say:

This case involves a straightforward instance of racial discrimination by a state institution. Other than in the highly charged context of discrimination in educational decisions in favor of "underrepresented minorities," the constitutional justifications offered for this practice would not pass even the slightest scrutiny. . . .

Standing alone, the term "affirmative action" might mean anything from affirmative action to study harder, to affirmative action to exclude minorities. However, as used in the context of our society's struggle against racial discrimination, the term first enters the public print and the national vocabulary in Executive Order 10925, issued by President John F. Kennedy on March 6, 1961, and subsequently incorporated into a wide variety of statutes and regulations. It ordered government contractors to "take affirmative action, to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." It is thus clear that whatever else Michigan's policy may be, it is not "affirmative action." . . .

I do not doubt that there are strong policy arguments for what Michigan has done. There is a plausible (though perhaps not a sound) policy argument that government should arrange social outcomes proportionally according to the race or ethnicity of its citizens, remedying, where it can, any pervasively unequal distribution of wealth, education, or status. There are many countries--India, Malaysia, and Serbia, to name a few--where such a policy is practiced. However, so long as the Equal Protection Clause is a part of the United States Constitution, the United States is not one of those countries. The fact that some might think this society would be a better one if more governmental benefits were allocated, because of their racial or ethnic status, to blacks, Hispanics, or Native Americans and less to whites, Asians, or Jews, or vice-versa, does not make those policies permissible under our Constitution. . . .

We are therefore faced with resolving for ourselves the constitutionality of the Law School's admissions scheme. Our inquiry must address at least one open question of law: can achieving diversity be a compelling state interest? On this open question, I have no argument to which to respond, as the majority never explains why "diversity" should be a compelling state interest, except to say that the conclusion is demanded by Bakke. After considering the arguments on both sides, I conclude that the state's interest in a diverse student body, at least as articulated by the Law School, cannot constitute a compelling state interest sufficient to satisfy strict scrutiny. . . .

The Law School's use of the term "qualified" reveals its slipperiness. The court majority reveals the Law School's shift in usage when it explains the rejection of a more random selection method because the school seeks to assemble "both a highly qualified and richly diverse academic class." The Law School appears to be all too cognizant of the difference between "highly qualified" and merely "qualified" applicants. Its two steep cliffs in the admissions rate, one for under-represented minority applicants and one for majority applicants, demonstrate that the Law School maintains a "two-track," indeed separated, system for admissions. Using its under-represented minority threshold, the Law School fills its seats reserved for "qualified" candidates. Using its majority threshold, the Law School completes the balance of its class with "highly qualified" applicants. That the Law School merely seeks to insure that "all its students are qualified" is an empty claim. . . .

Michigan's plan does not seek diversity for education's sake. It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration. It is a long road from Heman Sweatt [black man denied admission to University of Texas Law School in 1940s] to Barbara Grutter. But they both ended up outside a door that a government's use of racial considerations denied them a fair chance to enter. I therefore respectfully dissent from the court's legitimation of this unconstitutional policy.

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