From Compensation To “Diversity”

Prof. Carl Cohen of the University of Michigan is one of very few people who can honestly and accurately be described as a hero of both phases of the civil rights movement: the early phase, which lasted until the late 1960s, when the movement championed the core value of colorblind equality; and the later phase, when most of those who continued to describe themselves a fighting for civil rights abandoned that value.

Prof. Cohen did not abandon that value. I have written about him before; see especially here, which cites some other posts but primarily reproduces an eloquent letter he wrote the Michigan ACLU, an organization of which he himself is a former president. Now he’s written another letter that you should read in its entirety, an open letter to the faculty and students of the University of Michigan. Presented as an invitation to read Shelby Steele’s book, White Guilt, it does much more.

It is with great difficulty that I am resisting the temptation to quote the whole thing. Please reward my restraint by following the link above and reading all of it on your own. With confidence (or at least hope) that you’ll do that, here I will quote only a small part, about the transition from compensation to “diversity” as justifications for the discrimination that is at the heart of preferential treatment. Cohen’s discussion is directly relevant to these two recent posts (here and here).

The preferences we give to minorities in admission (and in other contexts) were initiated as a form of compensation for injuries earlier inflicted; they were efforts to make retributive payment. In reality those preferences impose great burdens on minorities, burdens that outweigh any benefits they appear to offer; nevertheless the preferences are commonly viewed as instruments of redress. This compensatory intention was for many years explicit. But equal treatment under the law is plainly inconsistent with compensation by ethnicity; one is entitled to redress for injury without regard to skin color. So the compensatory justification of preference was thrown out by the courts, even though it remains for most ordinary folks the only ground on which preferences might make any sense at all. Our University, defending preferences in the courts, renounced that compensatory justification explicitly, resorting instead to the one justification that had some hope of winning the legal battle: diversity.

….

As a defense of race preference, the alleged compelling need for racial diversity is entirely without merit. That defense has been advanced and accepted only because there is no other way, under the U. S. Constitution, to rescue the drive to expiate white guilt. We are told repeatedly, by people who seem not to fear embarrassing themselves, that diversity is the very heart of educational excellence. The compensatory payments by race that cannot otherwise be defended are saved by a dreadful argument.

That the diversity defense is no more than a stratagem is made manifest by the history of this controversy. Diversity was hardly ever mentioned until the compensatory justification was thrown out by the courts. The evidence in the Michigan cases (Grutter and Gratz) exposes and highlights the ruse. If a “critical mass” of minority students (what was claimed to be a compelling need) in the black minority requires, let us say, 50 blacks among the incoming law school class, how can it be that only 25 are needed for a critical mass of Hispanics? And only five for a critical mass of Native Americans! Candor compels the admission that all our talk about using preference to achieve a “critical mass” of students in each minority for the sake of educational excellence is – in the words of four members of our Supreme Court – a “sham.” It is a device, the only device available with which we can continue to satisfy the inner compulsions of white guilt.

I ask you to reflect. Can an increase in the number of certain racial minorities in the Law School entering class be a truly “compelling” need for the state of Michigan? Think about that claim. It is nothing short of preposterous. Some states in our country, Massachusetts and others, do not even have a state-supported law school. Can the racial makeup of the entering law school class at the University be compelling while in other healthy states such a class does not even exist?

A very good point indeed.

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