The Diversity Defense
The University of Michigan's excuse for racial discrimination
Mar 26, 2001, Vol. 6, No. 27 • By SHIKHA DALMIA
One of the first acts of Lee Bollinger upon taking office as president of the University of Michigan, Ann Arbor, four years ago was to vow publicly to mount the most vigorous and "comprehensive" legal defense of affirmative action or racial preferences yet. What prompted this show of bravado from a man otherwise known for his soft-spoken -- almost meek -- demeanor were two lawsuits by white applicants challenging the university's undergraduate and law school admissions programs. The lawsuits, filed on behalf of the applicants by the Center for Individual Rights, a public-interest legal organization in Washington, D.C., argued that the university had unlawfully rejected them in favor of less qualified minorities.
As the lawsuits wended their way through federal court, reaching trial late last year, Bollinger demonstrated that he was not kidding: The university has already spent $ 4.5 million -- a sum that would cover a full year's tuition for about 700 in-state students -- to hire one of the most prestigious law firms in the country, line up a slew of academic heavyweights as witnesses, and commission research to "scientifically" prove the benefits of affirmative action.
In the process, Bollinger has produced a case that is remarkable -- both for its candor and its disingenuousness.
The university admits openly that it discriminates by race. Yet, it claims that this violates neither the Constitution nor any civil rights legislation because it serves a "compelling state interest" -- diversity.
To make its case, Michigan relies upon the 1978 Supreme Court ruling in University of California Regents v. Bakke. In this ruling, Justice Powell, in his plurality opinion, allowed universities to use race as a tipping or "plus factor," when everything else is equal, to recruit a diverse student body.
But Michigan has taken this diversity defense further than any other institution. Elite universities in Texas, Georgia, and Washington that employ racial preferences have been sued. They have defended their practices primarily by demonstrating the advantages of preferences for their intended beneficiaries. The Shape of the River, a book co-authored by former presidents of Harvard and Princeton, has been their bible. The book attempts, among other things, to document how crucial preferences have been in strengthening the black middle class.
The University of Michigan, however, uses the diversity argument to make an even more grandiose claim: It argues that racial preferences are good not just for minorities -- but for all students.
This defense has secured the university a partial victory in the first round of litigation: Federal district judge Patrick J. Duggan, a conservative Democrat appointed by Reagan, ruled last December that the university's 1995 undergraduate admissions policy, the one directly under challenge, was illegal because it operated like a quota, something that Bakke explicitly prohibited. But he also ruled that Michigan's post-1995 policy of awarding under-represented minority applicants an automatic boost of 20 points or one grade point (when a perfect SAT score earns an applicant only 12 points) is not per se illegal. Oddly, he made this ruling despite the fact that the university itself admits that race gets no less weight now than it did in 1995. The university is awaiting judgment on whether similar favoritism by the law school toward minorities constitutes an illegal double standard. Regardless of the outcome, both these cases are likely headed for the Supreme Court.
How plausible is Michigan's pathbreaking argument, the diversity defense? Suppose one concedes that diversity is educationally valuable because it forces students to "encounter differences rather than one's mirror image," as Bollinger puts it. Still, why should skin color be the primary measure of diversity?
Bollinger's answer is that "race is educationally important for all students because understanding race in America is a powerful metaphor for crossing sensibilities of all kinds." The assumption behind this claim, as university expert witnesses explained during the trial, is that the primary experience shaping the psyche and intellectual viewpoint of Americans is their position on the "oppressor-oppressed" divide. Few would deny that some link exists between many people's race and their views. But the university reduces everything to race.