Three From The Chronicle of Higher Education

The December 13 issue of the Chronicle of Higher Education has several interesting articles on the Michigan AA cases. (All links require subscription.)

“Lead Plaintiff Against Michigan Still Hopes for a Spot at Its Law School” provides an attractive portrait of Barbara Grutter. One irony, among several, is that as a (now) 49 year old successful health care consultant and mother of two, she would have provided a larger dollop of “diversity” to Michigan’s law school than many of those whose contribution to “diversity” was limited to their skin color.

“At Michigan, Beneficiary of Affirmative Action Is Proud to Defend It” profiles Kristy Downing, a second year law student who is “almost certain I wouldn’t have gotten in the undergraduate level — and probably not on the law-school level — without affirmative action.” Ms. Downing, recently elected to the university Student Assembly under the banner of the Defend Affirmative Action Party, comes across as an attractive and deserving person. The picture she paints of affirmative action in practice at Michigan, however, is decidedly mixed.

Even though reporters and the lawyers on both sides of the cases speak about it all the time, students and professors at the law school (at least in private conversations) keep their mouths shut, Ms. Downing says. Students don’t want to anger their professors “or make them think that you don’t want to work as hard,” she says. “They’re nice guys, but you don’t know what they think — or even if they agree with the law school’s policies,” she adds. “I’ve never had an evenhanded discussion [about affirmative action] here. If I talk about it, everyone is against it. If people are for affirmative action, they don’t bring it up.”

Racial tensions are heightened, Ms. Downing argues, by a faculty that coddles minority students and treats them like intellectual curiosities. She says that in many of her courses, she and other minority students have never been called on, while other professors regard them as if “they should have the leading answer” on all matters related to race.

That attention can frustrate her at times. “I’m not going to be the leading authority on Johnnie Cochran and O.J. Simpson,” she says. “You know? These things that have nothing to do with affirmative action, but which have to do with the same issues of race.” While she agrees that minority students do have a unique perspective, she objects to the assumption by professors and students, some of them supporters of affirmative action, that a racial perspective is “the only thing [minority students] can contribute.”

She also criticizes professors whose “way of being sensitive to the issue [of race] is to baby [minority students] and hold their hands” and those who “presume I’m not able to handle it as well as others.”

Robert O’Neill, former president of the Universities of Wisconsin and Virginia and currently a professor of law at Virginia, provides useful background and analysis of the issues involved in the Michigan cases. O’Neill’s discussion of the strengths and weaknesses of the pro- and con- arguments is generally sound, except for his assertion that

the case for reaffirming Bakke begins with the historic presumption of stare decisis…. That is especially true when the experience under that doctrine has been consistent with the original court’s expectations and assumptions, as seems demonstrable with race-conscious admissions.

In the opinion of many analysts (including me, if I can count myself as an analyst) the case for stare decisis is especially weak here since the only Justice who accepted Justice Powell’s allowance of a limited racial preference to achieve diversity was … Justice Powell. Furthermore, many observers (including me, if I can now count myself as an observer) believe Justice Powell would never have ruled as he did (race a very limited “plus factor” that could be a tie-breaker between equally qualified candidates) if he had known that universities like Michigan would use the thin reed of that exception to the presumption against racial classification to design admission programs that differ only slightly, if at all, from the quota systems that he so forcefully barred.

UPDATE – I forgot to mention that O’Neill has an interesting prediction as to how the Supremes will decide:

The current court will again be sharply divided. It seems most likely that Justice Sandra Day O’Connor will assume Justice Powell’s swing-vote role in resolving the Michigan cases. Indeed, the most probable outcome appears to be an uncanny replay of Bakke 24 years later: A single justice who joins four of her colleagues in warning against rigid governmental use of race, leading to such abhorrent results as quotas and numerical groupings, but who then reaffirms with four different colleagues Bakke’s central premise that the flexible use of race, as one of myriad factors driving an admissions decision, comports with the Equal Protection Clause and our abiding commitment to equality and fairness.