Brief Brief Excerpt 1: A Bunch Of Law Professors

I hereby begin an occasional, irregular series of quoting brief excerpts from the various briefs submitted to the Supreme Court in the Michigan affirmative action cases, a task made much easier by the Center for Individual Rights, counsel for the plaintiffs, which has posted them on its web site. Initially I will be looking only at briefs supporting the plaintiffs. Later I’ll decide whether to do the same with those supporting Michigan (which aren’t due until Feb. 18).

Like the blog itself, this series will be highly indiosyncratic. I make no pretense to summarizing the briefs or quoting the most important or the most original points in each one, although with luck that may happen from time to time. I will be referring to items that strike me as interesting or blogworthy with the always implicit invitation for you to go read the whole thing.

First up is an amicus brief supporting the plaintiffs submitted by 16 law professors. Here’s its “Summary of Argument”:

This Court should hold that “diversity” is not a compelling state interest sufficient to justify race-based discrimination. First, “diversity” is employed by universities as a shorthand term for discrimination on the basis of race, is indistinguishable from the use of quotas, and is not a remedial interest. Second, racial “diversity” in the classroom does not constitute academic diversity; to the contrary, it is based on racial stereotyping and fosters stigmatization and hostility. Furthermore, even stereotypically assuming it resulted in a greater diversity of views and information, such a result is not a compelling interest that would outweigh constitutional rights in this or other contexts. Finally, “diversity” is a racebalancing interest that would, by its own terms, require race discrimination for eternity.

Further,

Amici respectfully submit that this Court should state in words so clear that they cannot be misunderstood by university administrators that the use of racial preferences, classifications, or “pluses” for the purpose of achieving a racially diverse student body is prohibited by the Fourteenth Amendment.

What I found most interesting in the brief was a series of quotations from other law professors, most of whom actually support racial preferences on various grounds, acknowledging that “diversity” contributes little to diversity and/or has become little more than a rhetorical fig leaf covering naked racial decision-making. (I’m overstating here; most of the quotees would not agree to so harsh a characterization of what they said.) A few examples (I’m omitting cites; check the brief if you need them):

Alan Dershowitz (Harvard)

The raison d’être for race-specific affirmative action programs has simply never been diversity for the sake of education. The checkered history of “diversity” demonstrates that it was designed largely as a cover to achieve other legally, morally, and politically controversial goals. In recent years, it has been invoked—especially by professional schools—as a clever post facto justification for increasing the number of minority group students in the student body.

Samuel Issacharoff (now of Columbia, formerly of Texas and one of the attorneys who defended preferences at Texas in the Hopwood case)

[O]ne of the clear legacies of Bakke has been to enshrine the term ‘diversity’ within the legal lexicon to cover everything from curricular enrichments to thinly-veiled set-asides.

Peter Schuck (Yale)

[M]any of affirmative action’s more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds.

Jed Rubenfeld (Yale)

[T]he pro-affirmative action crowd needs to own up to the weaknesses of ‘diversity’ as a defense of most affirmative action plans. Everyone knows that in most cases a true diversity of perspectives and backgrounds is not really being pursued. (Why no preferences for fundamentalist Christians or for neo-Nazis?)

Terrance Sandalow (former Dean, Michigan Law School)

My own experience and that of colleagues with whom I have discussed the question … is that racial diversity is not responsible for generating ideas unfamiliar to some members of the class. Students do, of course, quite frequently express and develop ideas that others in the class have not previously encountered, but even though the subjects I teach deal extensively with racial issues, I cannot recall an instance in which, for example, ideas were expressed by a black student that have not also been expressed by white students. Black students do, at times, call attention to the racial implications of issues that are not facially concerned with race, but white and Asian-American students are in my experience no less likely to do so.

UPDATE – The 16 professors could have cited (but did not) an article by University of Texas law professor Sanford Levinson, “Diversity,” 2 UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW 573 (2000) [Quote taken from an earlier version; published version does not seem to be online.]

I am, personally, a supporter of affirmative action, and my own defense is indeed based in part on the desirability of “diversity.” But I must also say that I believe that that argument works only in a relatively limited number of instances. I think “diversity” is too often invoked in circumstances where the term has relatively little cogency. Or, it may be that the term has “too much” cogency, i.e., that it is subject to so many varying meanings that it does not in fact provide a very useful reference for debate.

….

Moreover, I should note that Judge Weiner, in his concurring opinion in Hopwood, was entirely fair in noting that my law school in fact has a somewhat limited notion of diversity. “Focusing as it does on blacks and Mexican Americans only, the law school’s . . . admission process misconceived the concept of diversity…. [B]lacks and Mexican Americans are but two among any number of racial or ethnic groups that could and presumably should contribute to genuine diversity.” He is absolutely right.