To the Editor:

Carl Cohen writes with his usual clarity, cogency, and wit in “Winks, Nods, Disguises—and Racial Preference” [September 2003], but he pays insufficient attention to two key features of the Supreme Court’s landmark affirmative-action ruling in Grutter v. Bollinger.

In Grutter, Justice Sandra Day O’Connor built her decision on the judgment that higher education is just better “when the students have the greatest possible variety of backgrounds.” Diversity makes classroom discussions “livelier, more spirited, and simply more enlightening and interesting,” she wrote. It also “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”

As a professor for over 30 years, I understand this well. Most students take their own ideas as so obviously right that instructors regularly have to play “devil’s advocate” in order to push their thinking past the formulaic thrashing of straw men. A diverse student body works against overconfident narrow-mindedness far more effectively than anyone’s imaginings of what so-and-so would say if he or she were present. These kinds of challenging discussions are no loony-Left perversion; they are central to the mission of higher education.

A better critique of Grutter is to argue that, in practice, nothing so beneficial will flow from racial preferences. This is so for several reasons: there are not nearly enough qualified African American, Latino, and Native American students to go around; many minority students self-segregate; and relatively few classes encourage the kind of student-to-student discussions identified by Justice O’Connor as being so beneficial. A Grutter-inspired admissions policy might yield its anticipated benefits in a highly selective law school or undergraduate humanities department, but it will not matter much in the engineering or computer-science departments, thus reducing the state’s “compelling interest” in classroom diversity.

Moreover, although Mr. Cohen has little good to say about Justice Ruth Bader Ginsburg’s arguments in these cases, she makes a powerful case for affirmative action by focusing on the bitter truth of historical and present-day racism. The treatment of minority Americans has been horrific, and the effects of exclusion and bigotry remain strong to this day. As Cornel West recently put it:

[E]very major institution in American society—churches, universities, courts, academies of science, governments, economies, newspapers, magazines, television, film, and others—attempted to exclude black people from the human family in the name of white supremacist ideology. This unrelenting assault on black humanity produced the fundamental condition of black culture—that of black invisibility and namelessness.

Since our nation is not “free from the vestiges of rank discrimination long reinforced by law,” Ginsburg argued, schools may use the generally suspect category of race to surmount both the legacy and the current reality of racism.

If we still owe a break to non-white applicants, they should get it on ethical grounds—and we will find the right place in the Constitution to write it in.

Jeff Zorn
Santa Clara University
Santa Clara, California

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Carl Cohen writes:

The fruits of diversity, and other matters raised in Jeff Zorn’s gracious and thoughtful letter, deserve the most careful attention. Two features of the recent ruling in Grutter v. Bollinger are his concern: the opinion of Justice O’Connor regarding diversity, and the opinion of Justice Ginsburg regarding racism. I address them in turn.

(1) Higher education is “just better” when student bodies are diverse, we are told; diversity (O’Connor contends, and Mr. Zorn agrees) makes classroom discussions “livelier, more spirited, and simply more enlightening and interesting.”

There is some merit in this claim; classroom discussion is enriched by diversity of judgment and conviction. But skin color has little to do with that. Universities do well to attract a variety of perspectives among students and faculty: Marxists and libertarians, Christian fundamentalists and atheists, even (heaven forfend!) Republicans. But in fact this kind of consequential diversity is not vigorously sought. More than half the citizens of Michigan who express a party preference are Republicans, but on our faculty at the University of Michigan (and at nearly all selective institutions) they are rare indeed.

The diversity that race preference advances, on the other hand, has virtually no intellectual merit. The children of upper-middle-class black and Hispanic families who are the chief beneficiaries of race preference add very little diversity to the cauldron of opinions in our classrooms. So, in the first place, whatever merit diversity may actually have, it cannot serve to justify preference by race.

But suppose that variety of skin color, plainly irrelevant in most contexts, really did improve classroom discussions in some contexts. Courses in criminal law are the tired example commonly put forward. Would that justify deliberate race preference?

Racial discrimination, of which my university’s practice is one indubitable example, is morally wrong; we all know that very well. It is, as the Supreme Court has said on many occasions, an “odious” practice, not to be tolerated in a good society unless required by the most extraordinary circumstances. Does the modest improvement of classroom discussions in atypical contexts (supposing it is real) justify a public university’s employing deliberately discriminatory devices on a large scale? Surely it does not.

Suppose it were learned that racial discrimination made a very substantial contribution to the quality of education. Would that be enough? That was the genuine belief of the Southern states in 1954, resisting the integration of the public schools. They were able to bring, in support of the doctrine of “separate but equal,” a very great deal of evidence that segregation was good for majority and minority alike, much more solid evidence than the University of Michigan has registered in favor of its own form of racial discrimination. If those racists had been right, would we have been justified in retaining segregation for the sake of quality education? Of course not. The evidence that racial discrimination has very advantageous results was given, by the Supreme Court Justices in their unanimous decision in Brown v. Board of Education, all the attention it deserved: they ignored it.

That Justice O’Connor should have found the fact (if it is a fact) that racial diversity makes classroom discussion more “interesting” a reason to approve deliberate racial discrimination is a painful mark of her gullibility. The issue before the Supreme Court in Grutter was whether there was a “compelling need” of the state of Michigan that would justify a practice putatively wrong and plainly odious. Is that alleged, modest improvement in classroom discussion a truly compelling need? If the need for color diversity in classes were really so utterly critical, could the university not simply lower its entrance standards to achieve that racial mix? That might not be wise, but would it not be more defensible, morally and legally, than outright racial discrimination?

I share the pride of Michiganders in the elite and intellectually powerful law school at the University of Michigan. But maintaining such a law school is not a compelling need of our state; many states do not maintain a law school at all, and they thrive quite nicely. The argument of the majority in Grutter, that the benefits flowing from diversity is a compelling state need, is simply outrageous. If improving classroom discussion in the law school is a “compelling need” of the state of Michigan under the standard of strict scrutiny, then (as Justice Scalia put it bluntly) everything is.

Everything I have said so far supposes that the claims made for the advantages of diversity are true. In fact, most of them are not true at all. Consider the claim, reported by Mr. Zorn, that racial diversity “helps to break down racial stereotypes.” In fact it does the very reverse of that, reinforcing racial stereotypes by fortifying the belief that only through charity can blacks and other minorities be admitted to our finest schools. When students of some minority are admitted preferentially, their scholarly promise and attainments diluted by consideration of skin color or national origin, such students will, inevitably, perform less well than those whose credentials had not been so diluted.

That statistical inferiority in the performance of the preferred group results not from skin color but from corrupt admissions, and serves to buttress the canard that members of that minority are intellectually inferior. In athletics we do the same; a varsity athlete with a B+ average is an “Academic All-American” because athletic admissions have been so thoroughly prostituted. By giving systematic preference to athletes we have made the “dumb jock” not a myth, but a reality. For historical reasons, however, race preference is far more damaging to blacks than athletic preference is to athletes.

Does diversity, as O’Connor and company contend, “promote cross-racial understanding”? It does not. Here we have very solid evidence. Distinguished social scientists—Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte—were shocked by Michigan’s manipulative defense of diversity in reporting students’ answers to loaded questions like: “Do you feel that diversity enhances or detracts from how you and others think about problems and solutions in classes?” So Rothman et al. did a serious study: at 140 institutions, they got reports from thousands of students and faculty about the current state of cross-racial understanding on their campuses, and then correlated those reports with an independent empirical measure of enrollment diversity on those same campuses. The outcome is precisely the opposite of what Michigan contends and O’Connor swallows: in fact, the study found that “as the proportion of black students enrolled at the institution rose, student satisfaction with their university experience dropped, as did assessment of the quality of their education, and the work effort of their peers” (“Does Enrollment Diversity Improve University Education,” International Journal of Public Opinion Research, vol. 15, no. 1, 2003).

The claims of great educational benefit flowing from racial diversity are, in sum, a tissue of exaggeration and supposition and falsification; those claims, regurgitated by the Supreme Court majority without any serious scrutiny at all, have no solid empirical support. And even if they did, such advantages could not possibly justify deliberate discrimination by race.

(2) Justice Ginsburg, as Mr. Zorn observes, took another tack, emphasizing the “bitter truth” of racism in our country, past and present. It is indeed bitter truth. Discrimination by race has been a moral catastrophe in America for 300 years and more. Does that justify its renewed and continued use?

Race preference in university admissions does not begin to remedy racism, past or present; the compensatory argument in defense of preference offered by Justice Ginsburg (“we still owe a break to non-white applicants,” as Mr. Zorn puts it) has been weighed repeatedly by the courts, and repeatedly rejected. Race preference mistakenly treats entitlements as inhering in color groups rather than in the persons of those injured. Such preference inevitably rewards many who were not injured, fails to reward most of those who were indeed injured, and imposes its costs as a racial penalty upon still others who had no part in the imposition of the original injury. As a remedial device, race preference is unacceptably crude and intolerably unfair.

So plain is this that the University of Michigan, anxious to defend its preferences effectively, explicitly renounced all such arguments, relying entirely on the diversity defense—of which I have already said enough.

To Mr. Zorn I extend thanks for this opportunity to reflect upon the defense of racial discrimination grounded in the alleged benefits of diversity. However well meant, that defense is nothing short of an intellectual scandal.

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