Affirmative Action Arguments Debated at Public Service Conference

March 18, 2003

Affirmative Action Panel
From left, panel moderator Prof. Kim Forde-Mazrui, Jonathan Alger, Peter J. Rubin, Richard Banks, Curt Levey, and Roger Pilon. Photo by Alison Perine.

Two weeks before they meet at the U.S. Supreme
Court for a fateful showdown on affirmative action admissions
policies at the nation's public universities, the opposing sides
Grutter v. Bollingerheld a pretrial scrimmage at the
Law School March 15 as the main event of the 4th annual Conference
on Public Service and the Law.

The panel brought together Jonathan Alger, Assistant
General Counsel for the University of Michigan (the defendant
in the case brought by Barbara Grutter, an unsuccessful applicant
to the U-M Law School in 1997); Stanford University law professor
Richard Banks; Curt Levey, director of legal and public affairs
for the Center for Individual Rights (which is representing Grutter);
Roger Pilon, director of the Cato Institute's Center for Constitutional
Studies; and Peter J. Rubin, associate professor of law at Georgetown
University Law Center.

America's goals of transcending race and lessening
racial disparities presents conflict between two actions, according
to Banks. Transcending race requires ignoring it, but eliminating
disparities means paying it close attention. "It is not clear
how to translate these goals into constitutional doctrine,"
he said.

Affirmative action policies are "directed
toward the problem of the color line," Banks added. "They
are not simply about past inequalities. Those inequalities continue
to make themselves felt in our daily lives."

In a prologue to the panel discussion, Law School
Dean John C. Jeffries Jr., author of a biography of Justice Lewis
Powell, whose opinion in the 1978
Bakkecase is the foundation
for current college affirmative action policies, noted that the
argument over affirmative action is very nearly the same as it
was 25 years ago. "This is a remarkably durable dispute.
The fault lines have remained stable." Aside from abortion,
the affirmative action dispute is unique in this regard, he said.
"People in 1978 thought affirmative action programs would
last 10 years and then would no longer be needed. Proponents were
not candid.

"In 1978 there was talk about affirmative
action stigmatizing black students. I do not believe that has
been the case. These students have flourished here and we have
uncommon pride in them. Our policy has been an unqualified success.

"Supreme Court Justice Lewis Powell took
a step, maybe a half-step," Jeffries said, "toward a
better world. It's my hope that the Supreme Court will allow us
to continue down that road."

Jonathan Alger, assistant general counsel for
the University of Michigan, said the case makes this a "historic
time in higher education.

"We are fighting this battle as matter
of principle. We really think diversity is good for all our students."
He said "college is the gateway to opportunity," and
further that it is important to "note how successful [the
approach based on]
Bakkehas been."

Alger offered answers to what he said were the
central objections the Center for Individual Rights makes to Michigan's
argument, namely that public institutions should be color-blind,
that U-M is sacrificing the ideal of merit and that it is essentially
using quotas for minority admissions.

Alger said, "Having the goals of color-blindness
does not mean you have to ignore race. It does matter—as
the Supreme Court said in Brown v. Board of Education—in
education settings. Is bringing in blacks and Hispanics, is that
stereotyping? No, seeing their commonalities breaks down stereotypes."

He said there is "no trade off" of
affirmative action for merit-based admissions decisions. "It's
not just a matter of grades and test scores. Students are chosen
for what they can contribute to the education of their peers.
When you look at the careers they go in to, our students of color
are doing just as well as our majority students. All our students
are qualified to get in. I teach higher education law at U-M and
I have seen the benefits of diversity firsthand in my classroom."

As for the contention that U-M is essentially
maintaining a quota for minority students, Alger said, "That's
not how we operate. Everyone competes against the entire applicant
pool. Race is just one of many plus factors. Every year we have
some white students who are accepted who are less qualified than
some black students who are rejected. Why? Because they have something
special they bring to the class." (Michigan's undergraduate
admissions decisions involve a 150-point scale in which different
"plus" factors are awarded points. The son or daughter
of an alumnus, a "legacy," is awarded 3 points. For
essays judged outstanding, applicants are awarded 3 points.)

He said that percentage plans, which Texas now
uses, in which the top X percent of a high school class is offered
admission to a university, would not work for Michigan because
60 percent of their admissions are out-of-state students. As for
using socio-economic considerations as proxy for race, Alger said,
"We do, but it's not an adequate substitute for race."
He also noted that the authors of the Texas percentage plan have
submitted an amicus brief in support of the University of Michigan's

"Some moderate consideration of race"
does not have a detrimental affect on an applicant's chances,
he argued. "If race is not considered, a white applicant's
chance of getting admitted goes from 25 percent to 26 percent,
so [consideration of race] is not what's keeping those students
from getting in."

Curt Levey responded first by saying he would
use the term "racial preferences" about the issue rather
than "affirmative action," because "that's what
it is."

"At U-M, you get 20 points if you are black,
Hispanic or Native American. If it weren't a racial preference,
we wouldn't be here today. There is no constitutional prohibition
against diversity. The policy difference is over whether preferences
get you to a color-blind society faster or not."

"The real story here," Levey contended,
"is the education disease—the test score discrepancy
between blacks and whites—that creates the need for the preferences.
I would say that any treatment for a disease that leaves the disease
unchanged is not an effective treatment."

Levey said that U-M relies too heavily for its
diversity defense on Justice Powell's
Bakkeopinion, in
which he said consideration of race could be one of many factors,
when the four justices joining him in the vote don't express this
opinion as a common denominator. This interpretive ambiguity is
further borne out by the fact that two federal circuit courts
have ruled against higher education affirmative action policies,
he said. The results in the affected states, Texas and Florida,
are "a hell of a lot better than what people predicted they
would be if preferences are eliminated," he contended.

According to Levey, Michigan also "has
trouble" on "narrow tailoring," or defining a policy
so that its impact is strictly targeted and not broad and diffuse.
"U-M is not looking for a 'critical mass' of Muslims or Mormons
or people from the South or political conservatives. U-M has not
tried race-neutral admissions. If a critical mass is not a goal
then what is it? Is 5 percent a critical mass? Is 10 percent?
'Well,' they say, 'just barely.' For the last four years the minority
enrollment has been between 13.5 and 13.7 percent," implying
that such consistency is the outcome a quota would produce.

"They want to pretend that there are no
victims of racial preferences," Levey continued. "They
think that because blacks were discriminated against in the past,
it is now fair to discriminate against whites and Asians. All
that's changed is the fashion of who it's fair to discriminate

Peter Rubin, a former counsel to Vice President
Al Gore in the Florida vote-counting cases of 2000, contended
that without affirmative action "we would have essentially
all-white classes at the elite law schools. After Hopwood [the
Texas decision] came down, there were four African-American first-year
students at the University of Texas Law School the next year.

"Color-blindness sounds nice but it would
just freeze in place the conditions, the disparities, in society
today that reflect the legacies of racism. The University of Virginia
Law School does not take 'uncommon pride' in its blue- or green-eyed
graduates because that's a distinction that has no salience in
society. The narrowest tailoring is to use race as a factor,"
said Rubin, who also added that Clarence Thomas is a Supreme Court
Justice because of affirmative action.

Roger Pilon observed that characterizations
of affirmative action policies run the spectrum from benign to
malignant, but disagreed that no one feels harmed by them. "I
remind Mr. Alger that there are plaintiffs in this case. There
are people who experience these policies as us versus them.

"As a government institution, the University
of Michigan belongs to all the citizens of Michigan. Of the 150
possible points, 20 are automatic if you are of a preferred race… When you have a plan like Michigan's it comes close to being

Affirmative action policies pit the majoritarian
principle of American democracy against its egalitarian principle,
and in public institutions there are really no easy resolutions,
he said. "The dirty little secret of public higher education
is that it constitutes a massive wealth transfer from the lower
classes to the upper classes. They pay taxes to support the kids
from the higher-income families." Noting that the Supreme
Court's decision will have implications for private colleges too,
he said he saw no solution except to end public higher education
and "have the government give vouchers to qualified students
to attend the private universities of their choice."

Stanford law professor Richard Banks found both
stances on affirmative action problematic. "We hear forward-looking
arguments today about how things would be improved by the diversity
outcome. But the classroom diversity argument is troublesome because
it equates viewpoint with status," he said. On the plus side,
"U-M's program diversifies not just the classroom, but the
legal profession and the way we govern the nation. Lawyers are
the way we run the justice system."

He called percentage plans intended to redistribute
opportunities discriminatory because "If you don't have segregation,
percentage plans don't work. They are preserving the status quo."

Both sides meet again April 1 at the U.S. Supreme

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