Brief Brief Excerpt 2: Michigan Association of Scholars

(This is the second post in an ongoing, occasional series of excerpts from/comments on amicus briefs submitted to the Supreme Court in the Michigan affirmative action cases.)

The Michigan Association of Scholars, the Michigan affiliate of the National Association of Scholars, concentrates primarily on refuting the University of Michigan’s educational rationale for racial preferences. On page one of its brief, under “Interest of Amicus Curiae,” it asserts:

The University’s attempts to obscure its violations of the Equal Protection Clause come at an high price. It requires an enormous amount of time, effort, obfuscation and sophistry to camouflage admissions policies that are plainly racist. Indeed, pretending that such policies are not noxious, corrosive, humiliating and illegal — so as to avoid offense and to insure political correctness — is to undermine the University’s very first mission: to continue the search for truth and extend Michigan’s best traditions of intellectual rigor.


I. The MAS asserts that achieving racial diversity in the university student body can never be a “compelling state interest” sufficient to justify explicit racial discrimination.

II. The MAS also asserts that the racially discriminatory admissions systems of the University do not, in any event, substantially advance intellectual diversity, nor do racebased programs contribute to the central aim of the University — the pursuit of truth.

III. The MAS further asserts that, under the Equal Protection Clause, “academic freedom” does not license or conscience racially discriminatory conduct.

IV. The MAS contends that the racial preferences of the University are immoral and totally unacceptable in a democratic society.

V. The MAS concludes that racial preferences in admissions engender tension and racial hostility on the University campus.

The focus of this brief, and its greatest energy, lie in Arguments II and III. Under Argument I, however, it makes a strong claim for the constitutional requirement of colorblindness in a note on p. 9:

The Equal Protection Clause was not adopted to “help,” “pull up,” “improve” or “equalize the quality of the lives of” — black citizens. Rather, it was adopted to ensure that black citizens would be treated no differently than any other citizen in the eyes of the law. It follows from this high purpose that no citizen — of whatever race or ethnicity — may be treated differently in admissions, for example, by an arm of the state, because of race or ethnicity.

The central argument of the brief is that diversity, especially racial diversity, is not constitutionally compelling because it is not in fact compelling.

The scholars of the MAS, including senior members of the faculty of the University of Michigan itself, find the claims that racial diversity is central, essential, and indispensable to be false. These scholars know from long and varied experience that, even where diversity in their classrooms is a genuine merit, it is simply not the case that their work, their teaching, their research, cannot go forward successfully in its absence. The MAS notes that many great institutions of higher learning in Great Britain, in Germany, and most notably in Japan, pursuing their intellectual missions with dedication and vigor, have met with intellectual success and high achievement with student bodies that would not be considered “diverse” by the standards used by the University of Michigan. American society is different from these societies, no doubt — but the nature of intellectual work in the sciences and in the humanities is not so different to say that diversity is somehow a prerequisite for educational excellence.

The MAS denies, categorically, that racial diversity is central to their work as scholars. The MAS denies, categorically, that racial diversity is essential for research or for effectiveness in teaching. The MAS denies, categorically, that racial diversity is indispensable to the search for truth, which is the truly central task of our institutions of higher learning — truth that does not fluctuate with race or color or national origin. The Michigan Association of Scholars asks that this Court recognize that the University, in claiming that racial diversity is a compelling need of the state, is exhibiting that same distortion of the truth.

The brief also nicely points out the tension between the law school’s argument that diversity is crucial and that race is a valid proxy for diversity of attitudes and experiences, on the one hand, and its assertion, on the other hand, that a “critical mass” of minorities is necessary so that non-minority students can see, as Dean Syverud is quoted as stating, “that there is no ‘minority viewpoint’; they see, in other words, that there is a diversity of viewpoints among minority students.” As the MAS brief observes,

The University asserts that there are no archetypical minority viewpoints. But while asserting this the University insists upon employing an admissions process that assumes that the viewpoints of applicants largely follow their skin color. Regrettably, the law students at Michigan, and other like schools, are hampered in their absorption of the first of these assertions, which is true, by the University’s real-life reliance upon the second, which is false. The Law School cannot hope to confront racial prejudice successfully by practicing it.

Since I have argued (see here) that “diversity uses blacks for the benefit of whites,” I was particularly interested to see the MAS brief make that point in some detail.

In an effort to quantify the educational benefits of diversity, the University solicited and then issued a report written by Patricia Gurin, a Professor of Psychology at the University of Michigan. Professor Gurin sought to correlate the racial diversity of classrooms on the one hand with hundreds of educational outcomes on the other. Among her results was the conclusion that students’ self-reported intellectual self confidence improved more sharply in classrooms where there was greater racial diversity. But only by wading through pages of regression tables will one find the fact (not much emphasized by the University!) that student self-reported intellectual self confidence in racially mixed classrooms increased for white students. For black students Prof. Gurin found either no correlation or a negative correlation. Black student self-confidence, according to Prof. Gurin, either did not improve, or it declined in more racially mixed classes.

As the University would have it, the University is justified in abandoning normal admissions criteria so as to boost the number of black students in order that white students (but not black students) may feel more selfconfident. Whether this shows a need for diversity at all is arguable; that it shows a compelling need for diversity is absurd.

In any event, the brief argues, even if the benefits of diversity were as great as Michigan claimed they still could not justify the racial discrimination necessary to achieve it.

A simple thought experiment will confirm this. Suppose that the trial courts in Grutter and Gratz had determined that there was strong evidence that segregated classrooms improve learning and teaching at the University of Michigan. Suppose further that the data in support of segregating students by race were very impressive, far more impressive than the materials offered by the University in support of the alleged benefits of diversity. Would we think such evidence, even if reliable, constituted a justification for the deliberate segregation of university classes or activities? Of course not. However strong the evidence of its benefits, men and women of principle would insist that segregation by race, imposed by the state, is simply unacceptable. The advantages that may flow from it (MAS would say) could never begin to justify a policy that is intrinsically immoral and unjust.

And so it is with this case at bar. It is unjust to give advantages or impose burdens on the basis of skin color — even if doing so had some benefits, and even if that racial discrimination were honorably motivated. Racial discrimination is wrong; no benefits alleged to flow from diversity on the campus or in the classroom can make it right.

I’ve quoted more than I intended, but not so much that you shouldn’t read the brief.

Say What? (4)

  1. Cobb January 29, 2003 at 2:19 am | | Reply

    this is brilliant, and it is practically unassailable. it portends the death of diversity, just as it should die.

    on the other hand, it leaves the question of the legacy of institutional racism entirely up in the air, and it flattens history against better judgement. it is exactly because there is no compelling state interest in diversity that one cannot equate the discriminations in admissions with those which have motivated constitutional amendments. to call it all ‘racism’ and equate all moral outrages is in itself an outrage.

    it also makes a strong case that the mission of university is not public spirited in that it should not respond to popular demand. appealing, but…

  2. Rachel Cohen January 29, 2003 at 1:03 pm | | Reply

    Is “self reported intellectual; self confidence” the same as being pleased with yourself or SMUGNESS!? So white kids feel better when they have classmates who aren’t as prepared? Or do white kdis just feel great sitting next to black folks? This seems a stupid goal for a univeristy to foster.I’d think having student feel less pleaed with themselves would be a good plan.

  3. Xrlq January 29, 2003 at 1:28 pm | | Reply

    It never occurred to me before, but as a white guy who got into Boalt in spite of affirmative action, I suppose that I actually I “benefitted” from AA, as my unqualified and underqualified classmates gave my class ranking an artificial boost. Too bad Boalt doesn’t have class rankings.

  4. jeff January 29, 2003 at 2:06 pm | | Reply

    This is John’s novel contribution to the AA debate — that if “diversity” is a worthy goal (indeed, worthy of constitutional protection), the goal is being achieved to the detriment of minorities and for the benfit of non-minorities. In other words, suppose in the absence of AA, minority student X would not be admitted to U of M (population 10 students, 2 of whom are minorities — 20%), and instead is admitted to a school with lower criteria, like Wayne State University (population 10 students, 5 of whom are minority, including her — 50%). But, under AA, she is admitted to U of M, in place of one of the non-minority students, who goes to Wayne State. U of M’s minority percentage is now 30%, while Wayne State’s is now 40%. Thus the minority student, to serve U of M’s quest for “diversity,” now attends a less diverse university (30% vs 50% minority). Under the “diversity” argument, isn’t that student worse off?

    On the other hand, the non-minority U of M students are now “better off,” having their diversity percentage increased from 20% to 30%. So the university has, in effect, benefitted its non-minority students at the expense of its minority student (at least as far as “diversity” is concerned). Put that way, it almost sounds racist, doesn’t it?

    This meme doesn’t get enough play, imho. But congrats, John, for continuing to push it.

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