Some tactical stumbles on the way to the Michigan debacle
By John J. Miller
National Review, July 28, 2003
The Supreme Court delivered a huge blow to equal opportunity on June 23, but the two cases involving “diversity” at the University of Michigan may have been lost well before then. That’s because the Center for Individual Rights, the Washington, D.C.-based law firm handling the litigation, made a tactical decision early on not to challenge Michigan’s claim that racial and ethnic diversity improves the quality of higher education. “We didn’t have the resources to turn it into an issue,” says Curt Levey of CIR. “Besides, people out there have a sense that diversity is valuable, and we didn’t want to get into a debate over that. We wanted to focus on the legal principles.”
As it turned out, legal principle had little to do with what the Supreme Court decided. As Justice Sandra Day O’Connor wrote in her majority opinion, “The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.” CIR deferred as well. In 2000, as CIR and Michigan were wrangling in federal district court, CIR’s lead trial attorney, Kirk Kolbo, allowed that “racial diversity . . . is something that’s valuable, maybe even important.”
It is impossible to know whether this concession affected the outcome of the case; second-guessing is easy. What’s more, responsibility for an outrageous decision must lie squarely with the five justices who rendered it, and in particular O’Connor. Another culprit is the Bush administration, which submitted a feeble amicus brief and greeted the eventual decisions with troubling approval. “I applaud the Supreme Court for recognizing the value of diversity on our nation’s campuses,” said President Bush. “Today’s decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.” The Michigan rulings may “seek” such a thing, but they do not achieve it. They don’t even come close. They represent a near-total win for the supporters of racial preferences.
“Failing to take on the diversity argument was a big mistake,” says Ward Connerly of the American Civil Rights Institute. It’s a blunder conservatives can no longer afford to make. For more than a decade, conservatives have waged a slow but successful legal offensive against preferences in contracting and voting; the Supreme Court’s acceptance of “diversity” as a rationale for state-sponsored racial discrimination puts these gains in jeopardy. The Left now will try to expand the “diversity” argument beyond the confines of higher education. Pretty soon, it will be offered as a rationale for set-aside contracts, racial gerrymandering, and the composition of magnet schools in K-12 systems. Can “diversity” for gays be far behind? Conservatives who thought they were on the verge of a game-winning touchdown with the Michigan cases now find that they’ve thrown an interception — and the other team is sprinting down the field.
The Center for Individual Rights is a first-rate public-interest law firm; it was the key force behind the 1996 Hopwood decision, which restricted the use of racial preferences at the University of Texas and which, until June, was the most important federal court decision on preferences in education since Bakke in 1978. So the Michigan plaintiffs were in good hands when they hooked up with CIR and filed their lawsuits six years ago. The Hopwood case was won on pure law, with no mention of the social-science gobbledygook underpinning Michigan’s key claim that diversity is essential to intellectual growth. But Michigan’s innovation was a necessary one if racial preferences were to survive far into the 21st century: With bigotry an ever-decreasing feature of American life, the old justifications for preferences were losing their punch. They needed a new reason for being, and they got it from Patricia Gurin, a Michigan psychology professor who produced a flurry of research on the supposed benefits of diversity in Ann Arbor.
Gurin’s conclusions have been picked apart in exhaustive critiques by the Center for Equal Opportunity (CEO) and the National Association of Scholars and contradicted in separate research by political scientists Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte. Yet Michigan’s entire case rested on her claims. Still, CIR believed Gurin’s work was irrelevant. “Whether diversity is a compelling state interest is a legal question, not an empirical one,” says CIR’s Levey. Questions of principle shouldn’t play second fiddle to the soft claims of social science, after all.
And so CIR made a very sound constitutional argument against the use of racial preferences in higher education, ignoring what social science might have to say on the matter. “If people followed the normal rules of logic, CIR should have won going away,” says one conservative involved in the cases. “But judges aren’t normal people and they don’t always follow logic.”
“I say this more in sadness than in anger, but CIR made a tactical error,” says Peter Wood of Boston University. “They should have confronted the diversity argument.” This would not have been difficult. Following the oral arguments in April, it was reported in the press that a University of Michigan survey of its own students showed “diversity” having a negative impact on campus. Naturally, this piece of information did not find its way into Michigan’s court presentations. It was briefly assumed by some that the university had suppressed the survey results — until administrators said they had provided the report to CIR years earlier. “We had the material in our files,” says Levey. “We overlooked it.”
When the Michigan decisions were handed down, CIR claimed a partial victory because the Court struck down the university’s system of undergraduate admissions. “Overall, I think this is a big step forward,” said CIR president Terence Pell in a video clip shown on the PBS NewsHour. “I think what we are seeing today is the beginning of the end of race preferences.” CIR is virtually alone in this view, because in upholding Michigan’s law-school admissions, five justices enshrined diversity in the Constitution. “We were wiped out,” says Michael Greve, who headed CIR until 2000 and conceived the original lawsuits. “Anything else is spin.”
Not everyone on the right is as glum as Greve. The rulings were a major disappointment, but many conservative lawyers believe they leave the door open for more worthwhile litigation. “If the Left were in our position, it would not give up,” says Roger Clegg of CEO. “It would act like one of those whack-a-mole games you see at Chuck E. Cheese: You hit it in one place, but it pops up in another. That’s what we should do.” If the makeup of the Court changes in the next few years, perhaps the justices would even reverse themselves. They’ve done it before, and they’re more likely to do so when a ruling is fresh and controversial than after it’s perceived as old and settled. O’Connor suggested that preferences should be gone for good in 25 years, but waiting that long may be exactly the wrong approach. Another quarter-century might entrench them even further. At the very least, the Michigan rulings provide conservatives with a solid reason for opposing White House counsel Alberto Gonzales as a nominee to the Supreme Court: He had much to do with the weakness of the administration’s brief, and the positive air of its response to the rulings.
Conservatives may be able to limit the damage from the Michigan cases if they have a hand in determining how the rulings will be enforced. One reason the law school’s admission system passed muster with O’Connor is that it engaged in a “highly individualized, holistic review” of all applicants. This will be difficult to duplicate for undergraduates, however, because the volume of applications is many times larger. Michigan is already assuring everybody that this is what it will do, but that doesn’t mean it will succeed. “Just because they glance over an application doesn’t mean they’ve given it serious attention,” says one Bush-administration official. “And that’s what the Court is now requiring.”
Finally, there are political solutions. These haven’t worked well for conservatives in the past, but it’s important to note that the Supreme Court didn’t say universities must use preferences to achieve diverse student bodies; it merely said they may use them. The last real attempt in Congress to rein in preferences came eight years ago, when presidential candidate Bob Dole offered a bill to restrict them. It fared about as well as Dole’s 1996 campaign; since then, many Republicans have tried to make peace with preferences, in the belief that fighting against them riles up their opposition more than it pleases their own troops.
One political approach has worked, however. In 1996, California voters passed a sweeping ban on racial preferences in their state. Two years later, voters in Washington followed suit. Ward Connerly led both ballot initiatives. Just a few days after the Michigan rulings were announced, Connerly was clearing his schedule and making travel plans — for Ann Arbor. The fight against race preferences will go on.