The Michigan Review has withheld the author's name at her request. The author prepared the following explanation: "I am concerned that my beliefs about the legal merit of the diversity argument may result in repercussions at my place of employment here in the Ann Arbor area. (This despite the past weekend's wonderful Law School symposium marking the 10th anniversary of the Davis, Markert, Nickerson Lecture on Academic and Intellectual Freedom) I regret the circumstances that have led to this being an anonymous submission." The author is a graduate of the University. She characterizes herself as a "moderate but long-time Democrat." Readers may write her at anon23b@netscape.net.

The University of Michigan,  defendant in two discrimination  lawsuits, argues that its admissions practices are justified because of a “compelling governmental interest.” The courts accept this rationale (and only a few others) when permitting racial discrimination. In support of this alleged interest, the University offers 1999 and 1998 studies from psychology professor Patricia Gurin and former Princeton and Harvard Presidents William G. Bowen and Derek Bok (The Shape of the River: Long –Term Consequences of Considering Race in College and University Admissions, 1998).  Diversity, these and other scholars claim, helps ensure graduates better able to function in society. The argument is thus: the mere presence of more students of color translates to a better education. Current University policy, in the form of artificially inflated admissions Selection Index points for African Americans and other minorities, is designed to satisfy this interest.

That “education” should include preparation for good citizenship is reasonable and laudable. The Gurin report’s statistical analyses do argue well that a Caucasian University student will have a superior education because her/his classmates are African American.  But whether an African American student will have a superior education because her/his classmates are Caucasian is less clear. For example, Table M2 from the report, titled “Learning Outcomes… for African-American Students,” found a statistically significant negative correlation between “Amount of interaction with Whites” and “Graduate School Intentions.” (The full report is available at http://www.umich.edu/~urel/admissions/legal/expert/gurintoc.hand “

Unanswered by the Gurin report is to what extent Caucasian students (and society) benefit because of diversity on campus. Is this benefit sizable compared to the arguably inferior education rejected Caucasian applicants will receive? These are difficult and perhaps unfair questions to ask of social science. But then social scientists are coming to hard, fast conclusions related to these questions. As the courts strive to balance interests, answers must be forthcoming.

The diversity argument also ignores the successes of radically non-diverse institutions such as all-women and all-African-American colleges. In a statement on diversity on April 14, 1997, the American Association of Universities wrote that “students encounter and learn from others who have backgrounds and characteristics very different from their own.” Yet, while surely the background and characteristics of young men are different from those of young women, Smith, Mount Holyoke, and Wellesley exist on the premise that co-education tends to inhibit the education of women. Do all-women colleges shortchange their students compared to co-educational institutions?  Many studies argue persuasively to the contrary. Likewise, what does the diversity argument say about historically African-American institutions such as Howard and Morehouse?  Are they inferior because they are (by far) less diverse than the University of Michigan?  Graduates of Howard, Morehouse, and other historically African-American colleges and universities should be surveyed and the results presented alongside the African American student analyses of the Gurin and other reports before concluding that diverse campuses are superior to non-diverse campuses.

Justice Clarence Thomas has been perhaps deservedly pilloried for many of his court opinions.  Nonetheless, he appears to have some insight into the diversity argument. In Missouri v. Jenkins, 515 U.S. 70 (1995), a desegregation funding case, he wrote that “ ‘Racial isolation’ itself is not a harm; only state enforced segregation is. After all, if separation itself is a harm, and if integration therefore is the only way that African-Americans can receive a proper education, then there must be something inferior about African-Americans. Under this theory, segregation injures African-Americans because African-Americans, when left on their own, cannot achieve. To my way of thinking, that conclusion is the result of a jurisprudence based upon a theory of African-American inferiority.” The insistence by Bowen, Bok, Gurin and others that educational diversity is per se benevolent demands qualification.

Lastly, if Brown v. Board of Education is any indicator, the courts will ignore the statistical analyses purporting to support a compelling governmental interest. According to Philip Elman, Assistant to the Solicitor General during Brown, “states used psychological and sociological evidence to try to prove that racial segregation in classrooms was ‘better for both races,’ that it provided educational benefits, prevented racial conflict and generally promoted mutual tolerance and acceptability.” Elman notes the Supreme Court completely ignored these arguments. (See Elman’s May 13, 1999 letter to the New York Times.) The University is also arguing that discrimination on the basis of race is better for both races.  The only difference between the University’s arguments and those Elman cites is that the University is seeking discrimination against Caucasians.

Presumably the diversity argument will resoundingly fail the “compelling governmental interest” test. The University will then need to consider (1) other legal arguments to makes its case; and (2) legally permissible ways to change the admissions process so that it simultaneously addresses the effects of the African-American holocaust.

The law allows discrimination on the basis of race when it is intended to remediate the effects of past discrimination.  In part the many students of color and organizations who have joined the University in defending its affirmative action admissions argue that, indeed, the University has discriminated in the recent past (for example, with legacy admissions), and its current policy should remain to remediate this.
However, the university will not take this stand, because it fears it will mean, if it wins, that the university will be liable to African-Americans for this discrimination.

How important is the presence of African-American students on campus (for whatever reason, be it diversity or remedying the effects of past oppression)?  Surely it is important enough for the university to risk liability.  For it not to adopt this argument and use, instead, another argument that is bound to fail in the courts is disappointing.  That the university denies it has ever discriminated against African-Americans is feckless. That instead it maintains diversity is inherently good is the stuff of white liberal cowardice and racism (though fraught with good intentions).  And never mind that the university already risks liability to the Caucasian plaintiffs and past Caucasian applicants who were denied admission if it loses.

The courts will permit a university some leeway in its admissions. For example, life experience may count in lieu of race. Of course many African-American (and other) applicants have backgrounds translating to achievement despite adverse circumstances. Based on the higher rate of poverty among African-Americans, one can reasonably predict that their experiences may often demonstrate superior motivation and ability to thrive under difficult conditions. This should indeed count for something.

In July, the University of Georgia’s argument that diversity serves a “compelling governmental interest” was rejected at the District Court level. This happened despite the well-documented fact that the University of Georgia refused admission to African-Americans until 1961.  U.S. District Judge Avant Edenfield wrote that, “To base racial preferences upon an amorphous, unquantifiable and temporarily unlimited goal is to engage in naked racial balancing.” As of October 5, this very relevant lawsuit had not yet earned even a mention at the University’s website on the admissions lawsuits.

The evidence pointing to the University’s defeat in the courts is sizable.  Despite this, President Bollinger and others remain publicly sanguine.  Are they dissembling in the hope of, say, stalling and raising consciousness (about, for example, how strongly some desire a race-blind society)?  History may indeed prove this effort to be an important and valuable contribution to the debate on race. But at some point, the University will have to respond to some difficult issues concerning the diversity argument.  Simultaneously, the university must consider methods which are legal and far more likely to succeed in addressing the historic oppression of African-Americans and other minorities.