By Thomas J. Bray
Detroit News, December 20, 2000
When affirmative action was first invented, it was widely sold as a temporary measure to help minorities overcome discrimination. A little noticed but highly troubling feature of last week’s ruling upholding the University of Michigan’s use of race as a “tipping factor” in admissions is that it would enshrine ethnic preferences as a permanent feature of the American landscape.
That’s because Federal District Judge Patrick J. Duggan, a conservative Democrat who was appointed to the bench by Ronald Reagan, accepted U-M’s contention that taking ethnic background into account in admissions decisions is necessary not to rectify past injustice — which U-M in any case denies having committed — but to improve the educational richness of the U-M experience. Students learn better and perform better later in life if they are exposed to people of differing backgrounds.
Few parents these days would want their children to attend schools from which whole categories of people are deliberately excluded, of course. But actual evidence for the benefits of specific levels of ethnic diversity is thin at best. The only evidence introduced by U-M was compiled by a U-M psychology professor, something akin to a judge in a Firestone tire case accepting the research of a Firestone scientist on the causes of tread separations.
There was no effort to say whether the alleged benefits of, say, a student body that is 8 percent African-American as opposed to 4 percent would outweigh the costs of overriding the basic American principle that everybody deserves equal treatment before the law. Equally troubling, the Duggan rationale would transform affirmative action from its original aim, to remedy actual discrimination against black Americans, into a permanent regime of social engineering that is likely to set various groups at each other’s throats. How much diversity, after all, is sufficient to enrich a campus environment?
Judge Duggan, who is known locally as a fine trial judge, doesn’t say — perhaps for the simple reason that there is no logical limit. Diversity is an infinitely elastic concept; educational enrichment is a goal without boundaries. As a result, future admissions directors will be free to manipulate the make-up of entering classes to their heart’s content as long as they can claim that it furthers the almighty goal of diversity.
This should make even the immediate beneficiaries of the Duggan ruling nervous. African Americans may be defined as today’s minority in need of special breaks. But who will be defined as “diverse” tomorrow? One can appreciate why black activists have been struggling to intervene in the U-M case. They are clearly nervous that their long-term interests will be sold out by mostly white university bureaucrats who may be liberal today but something else tomorrow.
The Duggan decision isn’t likely to be the last word. A similar case involving the U-M Law School will be argued before a different judge in Detroit federal court on Friday. Too, the undergraduate case itself is likely to go all the way to the U.S. Supreme Court, whose conservative majority has been looking increasingly askance at racial preferences and slippery notions like diversity.
In 1978, the controlling opinion in the controversial Bakke case, on which the high court was deeply split, held that race could be used as a “plus” in university admissions. As Judge Duggan conceded in an apparently unguarded moment in his opinion, U-M uses race as far more than a tipping factor even in the sanitized system adopted two years ago. “(A) race-neutral program would substantially reduce the number of underrepresented minority students,” Judge Duggan wrote, in essence conceding that race is not just a factor in admissions, but a major factor.
Because the hometown judge was understandably loathe to find that U-M has historically discriminated against blacks — a finding that might justify the remedy of affirmative action as originally conceived — he was forced to rest his opinion heavily on the diversity rationale. But if affirmative action isn’t needed any longer to guard against discrimination, why is it needed at all — except, perhaps, as a cover for a miserable K-12 system that is failing black youths in cities like Detroit?
If U-M can’t come up with a better rationale than diversity, in short, it may have just enjoyed the step forward that will be followed by two steps back.
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