To the Editor:

Jonathan Kay hits the nail on the head in “The Scandal of ‘Diversity’ ” [June]. The argument that there are some unquantifiable “educational benefits that flow from an ethnically diverse student body,” as Justice Lewis Powell put it in 1978, is clearly a fallacy. But suppose it were not. Suppose diversity fostered higher learning and increased test scores. Even so, the policies favored by the University of Michigan would still be unconstitutional. There is no “diversity exception” to be found in the Constitution, and a factually unsupported throwaway line by Justice Powell in the Bakke decision should not be used to overhaul that entire document. The appeal to “diversity” is simply a not-so-subtle way to evade constitutionally prohibited race-based admissions.

Even more baffling to me as an American Jew is the support of so many Jewish organizations for such discriminatory policies. Joining in the amicus brief in favor of the University of Michigan’s admissions policies were, among others, the Central Conference of American Rabbis, Hadassah, the American Jewish Committee, the National Conference for Community and Justice, the National Conference of Jewish Women, the Progressive Jewish Alliance, and the Union of American Hebrew Congregations. Why would these organizations support policies that may directly harm Jewish sons and daughters? Perhaps Mr. Kay could shed some light on this.

David Epstein
New York City

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To the Editor:

Since I am beginning my studies at Yale Law School this fall, I read Jonathan Kay’s article with great interest. His conclusion—that an enormous price is paid for the privileges conferred by affirmative action—holds even greater urgency now that the Supreme Court’s decision has come down in the University of Michigan Law School case.

By upholding an admissions policy in which, as the lower court said, “race is worth over one full grade-point of college average or at least an eleven-point and twenty-percentile boost on the LSAT,” the Supreme Court has bought bad policy for a princely sum. This price is paid not only by those who are traded off in the admissions process but by society as a whole. This is because the concept of “diversity” demands that we cross the fine line between statistical trend and racial stereotype, presuming the child of wealthy black professionals to be more attuned to the needs of poor blacks than the child of poor whites who grew up in a racially mixed community. Instead of regarding all individuals as equals before the law, racial preferences treat all individuals as equals only among members of the same race: one black person’s experience of discrimination, the assumption goes, will be more or less the same as another’s.

As Mr. Kay demonstrates, this suspension of disbelief leads inexorably into intellectual dishonesty. The Supreme Court, in its recent decision, may have led us from dishonesty into injustice.

Tara Helfman
Flushing, New York

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Jonathan Kay writes:

Jews account for about 2 percent of the U.S. population. By my observation, their proportion of the student body at Yale Law School was ten times that. This level of “over-representation” is typical of other elite law schools, and of Ivy League campuses generally. In fact, the available data suggest that at least one in ten of the minority applicants who gain preferential entry to highly selective colleges, post-graduate programs, and professional schools in this country do so at the expense of a better-qualified Jewish applicant.

David Epstein asks why so many Jewish organizations support policies that may directly harm their constituents. In part, the answer is simply that Jews tend to be more liberal than American voters at large, and the policies of Jewish organizations reflect this fact. On race issues in particular, many community leaders remain faithful to a political alliance struck between blacks and Jews a century ago. The affinity between the two groups had a cultural aspect: both Jewish immigrants and religious blacks saw parallels between the story of Exodus and the end of modern slavery. Being disproportionately drawn to left-wing politics, many Jews also tended to view blacks through the prism of class struggle—an attitude comically epitomized by Alvy Singer’s father in Woody Allen’s Annie Hall, who defended his black cleaning lady against accusations of theft by insisting that “she’s a colored woman, from Harlem! She has no money! She’s got a right to steal from us! After all, who is she gonna steal from if not us?”

The two groups were also bound together by specific political goals. Both opposed white, Christian prejudice, and had much to gain from the emergence of a meritocratic society in which people were judged not on the basis of their faith or skin color but by the content of their character. The fight against anti-Jewish quotas in universities and the fight to end southern segregation were, in this respect, one and the same.

Once the great battles of the civil-rights era had been won, however, the political bond between the two groups began to break down. When the entrenchment of the merit principle failed to deliver its promised benefit to blacks, liberals agitated for a different kind of discrimination. The resulting preferences and quotas have vitiated the race-blind ideal for which Jews and blacks once fought arm in arm.

Thanks to class-based guilt and sociological habit, many Jews have not yet broken ranks with blacks over affirmative action. Eventually, I believe, that will change, especially as more Jews rethink their attachment to the Democratic party and the race-conscious polices it promotes. As for affirmative action itself, its days may be numbered as well. While I am disappointed by the Supreme Court’s decision in the University of Michigan Law School case, I am at least cheered by the Court’s expectation that “25 years from now, the use of racial preferences will no longer be necessary to further the interest [in diversity] approved today.” As others have noted, this is about as close as the Supreme Court comes to setting an expiration date on one of its opinions.

I was also gratified to see that some of the arguments cited in my article were echoed in Justice Clarence Thomas’s powerful dissent. Unlike the Court majority, Thomas was unwilling to swallow the University of Michigan’s claim that maintaining a “critical mass” of enrolled black and Latino students amounts to a “compelling state interest.” Indeed, he showed that the educational advantages ascribed to a “diverse” environment are far more dubious than university educators would have us believe. Fittingly, his citations included the recent Rothman, Lipset, and Nevitte study, which, as I noted in my article, found that student satisfaction and perceived educational quality varied inversely with the proportion of enrolled African-American students.

“The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers,” Justice Thomas writes in one particularly strong passage, and he continues:

These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. . . . Indeed, to cover the tracks of the aestheticists [Thomas’s term for those who prize chromatic diversity over nondiscrimination] this cruel farce . . . must continue—in selection for the Michigan Law Review . . . and in hiring at law firms and for judicial clerkships—until the “beneficiaries” are no longer tolerated.

In her courses at Yale Law School, Tara Helfman will undoubtedly come to observe first-hand the truth of Justice Thomas’s words.

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