To the Editor:
In “Race Preferences and the Universities—A Final Reckoning?” [September], Carl Cohen provides further evidence of the chicanery that continues to be practiced in the halls of academe under the rubric of affirmative action. Given the facts of the Gratz and Grutter cases at the University of Michigan, it is Mr. Cohen’s hope that the Supreme Court will bring the policy of racial preferences to an end once and for all.
But Mr. Cohen knows all too well that the moment the Hopwood decision was announced in 1996, friends of affirmative action at the University of Texas—the defendant in the case—took steps to block its implementation. At the same time, school administrators conjured up creative variations on the theme; affirmative action, under a new guise, continues to exist at the university. I fear that a “victory” by the plaintiffs in the Michigan cases will likewise prove to be a hollow triumph.
In 1831, President Andrew Jackson, confronted with a Supreme Court decision he opposed, is supposed to have said: “[Chief Justice] John Marshall has made the decision; now let him carry it out.” Unless there is a commitment on the part of the executive branch, Supreme Court rulings can be fudged or forgotten. The governor of Texas at the time of the Hopwood decision was George W. Bush, who, despite his presidential campaign promise to the contrary, has already lent his administration’s support to the principle of “set-asides” (i.e., quotas) in the Adarand case.
I am not as sanguine as Mr. Cohen about what will happen if our highest court sweeps away all affirmative action in higher education, but I too will pray for its demise. My prayers will be directed to St. Jude, the patron saint of lost causes.
Vincent Chiarello
Reston, Virginia
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To the Editor:
Carl Cohen’s excellent article makes it clear that the mantra of “diversity,” like “affirmative action,” has been used as cover for blatant violations of the civil-rights laws as Congress intended them. Consider United Steelworkers of America v. Weber (1979), decided a year after the Bakke case by the same Justices who had supported racial preferences in higher education. Tide VII of the Civil Rights Act of 1964 explicitly prohibits all racial discrimination in employment-training programs. Yet the Court decided to allow such discrimination under a union’s collective-bargaining agreement In his dissenting opinion, Chief Justice Burger wrote: “Under the guise of statutory ‘construction,’ the Court effectively rewrites Title VII to achieve what it regards as a desirable result.” Justice Rehnquist added: “Thus, by a tour de force re-miniscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language.”
Let us hope Mr. Cohen is right, and that the Court decides the cases from the University of Michigan not according to the Justices own preferences but according to the law.
J. Edgar Williams
Carrboro, North Carolina
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To the Editor:
While Carl Cohen admirably exposes the legal and moral weaknesses of racial preferences in college admissions, he understates the degree to which such quotas have come to be seen as intrinsic to the very nature of a university.
It used to be that a university was called a university because it was a place where all things were considered. What was universal was the field of study, not the background of students. But today, when truth is seen as subjective, the point of view matters more than the thing viewed. According to this way of thinking, institutions have the right to call themselves universities not because all things are considered but because all kinds of people consider them. Thus, “African studies,” for example, is not the study of Africans but the study of the African point of view, which, along with every other point of view, must now leaven every field.
While abolishing racial preferences would obviously be a breakthrough for justice and common sense, we need to treat the larger illness of subjectivism, of which the “diversity defense” is only one symptom.
Peter A. Speckhard
Green Bay, Wisconsin
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Carl Cohen writes:
Vincent Chiarello and J. Edgar Williams are concerned about the same underlying phenomenon: the deliberate and vexing efforts of universities (as Mr. Chiarello reminds us) and even of the courts themselves (as Mr. Williams reminds us) to evade the law’s command that race preference come to an end. Let me begin with the latter.
Mr. Williams is dead right about Weber. Two decades ago I published in COMMENTARY an extensive analysis of that extraordinary case (“Why Racial Preference Is Illegal and Immoral,” June 1979; and “Justice Debased: The Weber Decision,” September 1979), calling attention to the disgraceful reversal of the meaning of the Civil Rights Act in Justice Brennan’s opinion. There is no doubt whatsoever that Congress intended, in Title VIE of that act, to forbid precisely the sort of race preference in employment that Brennan managed to find acceptable in Weber.
It is equally clear that Title VI of the same act—addressing institutions, like universities, receiving federal financial assistance—forbids unambiguously the sort of race preferences that have been widely given by such institutions. The failure of the Justices to strike down such preferences in the Bakke decision of 1978 was (as Professor Lino Graglia remarks in a letter to COMMENTARY this past September) simply shameful. Only better appointments to the Court can eliminate such occasional malfeasance.
But the efforts of middle-level administrators (in universities and elsewhere) to evade the force of the written law are more widespread and very difficult to stamp out. Mr. Chiarello correctly observes that such chicanery is all around us, takes many forms, and is indeed infuriating. The percentage plans used in several states (admitting the top 10 percent of each high-school class in Texas, the top 20 percent in Florida, etc.) have been devised to achieve the same racial proportionality earlier sought through outright race preference. The plans serve that end only because the high schools themselves are so sharply segregated. They are plainly bad for the intellectual standing of the universities that use them, but since on their face they seem to be race-neutral, they are likely to survive legal challenge.
Other devices, also designed to evade the law, are less secure, however. In California, where Proposition 209 (now Article 31 of the state’s constitution) renders ethnic preference in admission impermissible, the University of California makes every effort to do indirectly what it is forbidden to do directly. Even as I write, the regents are considering a revised admission plan that would fill the seats of entering classes at UCLA and Berkeley with students selected by “comprehensive” evaluation, ignoring quantifiable performance in classes and test scores and permitting admissions officers to weigh subjectively the social merits of applicants.
This change is being pressed so forcefully by the Latino caucus in the California state legislature that the regents will probably adopt it. But the ensuing disproportionate acceptance of Latino students under the new “comprehensive” standards will surely be challenged and have to be defended in court, and the university will bear the burden of proving race-neutrality in its methods. This burden will be nearly impossible to sustain.
Of course, even if this device is thrown out, there will be others after it, as Mr. Chiarello notes. Is there, then, no stopping such subversion? The California Association of Scholars has been firm in attacking, in the California courts, every effort to evade the command of equal treatment. If and when race preference in universities is struck down nationally, the same principled tenacity will be called for in every state. Nothing is foolproof. Years must pass before the drive for preference will fade and the wounds that have been inflicted by it can heal.
But here is a hopeful note. Duplicitous efforts to evade the law are as clear to the members of the Supreme Court as they are to the rest of us. It may be that, in response to the Michigan cases (to be argued in early December before the whole of the Sixth Circuit Court of Appeals) or to some other case, the Court, exasperated and out of patience, will frame its rejection of race preference under the law in words so loud that even the deaf may hear, and in language so clear and so unmistakably comprehensive that university administrators will see that continued evasion is simply unacceptable (as Southern school boards eventually came to see that de-jure racial segregation in the schools was simply unacceptable), and that honor and good repute can be retained only if the constitutional guarantee of the equal protection of the laws is both internalized and made concrete.
Finally, a brief response to Peter A. Speckhard’s lament that quotas have come to be seen as “intrinsic” to a university. With him I am pained by the discriminatory practices that have become ensconced in my university and in many others. But he overshoots a little. Although it is outrageous to suppose that the desire for intellectual diversity justifies racial discrimination, it really is a good thing, as Lee Bollinger, the departing president of Michigan, has repeatedly insisted, for students to have about them a great variety of persons and ideas; the quest for that genuine diversity of argument and vision is one that universities undertake with good intellectual reason. Some happy day, when race discrimination has been put behind us, we may pursue that quest with enthusiasm, and support it without fear.
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