Condemned by Justice Powell

January 16, 2001 − by CIR − in News − Comments Off on Condemned by Justice Powell

By Carl Cohen

The Michigan Daily, January 16, 2001, p. 5.

Our University’s admissions programs give preference by race. That is an indisputable fact; University President Lee Bollinger frankly admits that “we do discriminate.” The objective, diversity, is thought to be so compelling that to advance it even racial discrimination is found tolerable. As a matter of law and morals, this is a seriously mistaken judgment.

Justice Lewis Powell, upon whom our University leans heavily, wrote this in his Regents v. Bakke opinion: “The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” (438 U.S. 265, at p. 289) Of course. But we do treat people differently (giving extra points or special advantage) depending simply on the color of their skin. This contravenes the letter and the spirit of the 14th Amendment: “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” The ugly history of racial oppression in America leaves no doubt that race preference – in any and every form – is unjust, deeply wrong.

An admissions system is unacceptably discriminatory when it gives systematic preference by race – exactly what ours does. Justice Powell condemned the California program repeatedly because it involved “the use of an explicit racial classification” (p. 319) just as our program does, because its benefits “hinge on ancestry or the color of a person’s skin,” (p. 320) just as in our program and because it was “undeniably a classification based on race and ethnic background.” (p. 289, emphasis added), just as our program is.

But improving education for all is the aim; doesn’t that justify our preferences? No, not if the system violates the U.S. Constitution, which it does (for Justice Powell) if it relies upon “a line drawn on the basis of race and ethnic status.” (p. 289, emphasis added). As ours does.

But doesn’t Powell allow that “diversity” may justify what we do? No, not what we do! Our system prefers applicants flatly by skin color; that, said Powell, “misconceives the nature of the state interest” (p. 315, emphasis added) in intellectual diversity.

But we weigh a “broad array of characteristics” of which race and ethnicity are only two. Doesn’t that protect us? It does not. For Justice Powell (the only Supreme Court justice who has ever addressed “diversity” in this context) any plausible consideration of race would require at least that broad array, to be sure. But such an array is for him a necessary condition, never a sufficient condition for the consideration of race.

Powell wanted admissions officers to have some ‘wiggle room’ in close cases. So, he thought, in evaluating particular applicants, race might at times enter at the margins, where non-racial merits of other applicants may readily outweigh it. But – and in this Powell is explicit – such occasional consideration of race could apply only to some individual applicants, never to racial groups. He wrote: “(R)ace or ethnic background may be deemed a ‘plus’ in a particular applicant’s file … The file of a particular black applicant may be examined … (p. 317, emphasis added). Wholesale race discrimination, like ours, he held totally unacceptable.

What features render a program’s consideration of race impermissible? Powell is unambiguous: Does the program draw a line on the basis of race? If it does, as ours does, it fails. Are applicants of different colors accorded the same or different treatment? If different by color, as in our system, then (whatever the array of characteristics also weighed) equal protection has been denied.

Is consideration of race for some individual applicants (which Powell thinks occasionally permissible) really distinguishable from the systematic consideration of race for all applicants? Certainly. “(A) broad array of characteristics” may be used “as a cover for the functional equivalent of a quota system,” Powell wrote, but where all and only those of certain color are given special favor the system reeks; it exhibits (in his words) “a facial intent to discriminate.” (p. 318, emphasis added). That’s us.

Justice Powell’s resort to diversity, designed to soften the earlier ruling of the California Supreme Court totally excluding race, may be an entirely mistaken path. But in any case his leniency is nothing like our systematic discrimination – which he found legally and morally repugnant. We do precisely what Powell categorically condemned.

We mean well, of course, but our race preferences are intolerable in a decent society. They will soon end.

Philosophy Prof. Carl Cohen was one of the first people to challenge the University’s admissions policies. His Freedom of Information Act requests of these policies five years ago are credited in sparking the movement to end race-based admissions at the University.


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