American Jewish Congress Panel Discussion on Affirmative Action
Statement of Jeffrey S. Lehman
May 7, 2003
I want to say what a privilege it is to be invited by the AJC to be on
this panel with Roger to talk about affirmative action.
In 1997 the Center for Individual Rights filed two lawsuits, each
challenging the constitutionality of a different admissions policy used at the
University of Michigan. One of
those policies is how the University selects undergraduates for admission. The other policy, the one that I helped
to draft, determines how the University selects law students for
admission. The policies are very
different from one another. But they do have one thing in common. They each consciously place a positive
value on having a racially integrated student body.
In the five and a half years since the lawsuits were filed, I’ve had the
chance to participate in countless discussions about affirmative action, and I
have come to appreciate the different forms of criticism of affirmative action,
and how they play out in their implications.
To me, affirmative action is a difficult issue because it responds to a
genuine conflict between two values that most of us cherish. During my presentation this morning, I
would like to do four things:
First, I would like to talk about the two competing two values.
Second, I would like to describe four different responses to the
conflict that people might have.
Two of those responses are articulated by supporters of affirmative
action, and two of them are articulated by critics of affirmative action.
Third, I would like to speculate about where among these four positions
a majority of the Supreme Court is likely to land when it decides the case next
month.
And fourth, I would like to offer even more speculation about what that
will mean for universities next year.
So what are the two competing values? The first value is what is sometimes called colorblindness
and sometimes called race neutrality.
It is a recognition that there is a social cost to be paid whenever
anyone allows another person’s race to make a difference in how they are treated.
The second value is what is sometimes called integration and sometimes
called diversity. It is a belief
that universities are better institutions if they enroll meaningful numbers of
students from each of the large racial and ethnic groups that have salience in
American society – whites, blacks, Latinos, Asians Americans, and Native
Americans. I want to note here
that some people hold this value for educational reasons – they believe that
integrated universities do a better job of preparing students to be citizens in
a multiracial society. Other
people hold this value because they believe it is necessary to respond to a
national history in which non-whites were disadvantaged because of their race
or ethnicity. And some hold this
value for both pedagogic and compensatory reasons.
Most of us appreciate both these values. We favor colorblindness. And we favor integration. But we experience a conflict because, at least today, at the
most selective law schools, it isn’t possible to have both colorblindness and
meaningful degrees of integration.
So how might one respond to that conflict? As I mentioned a minute ago, I believe there are at least four different responses. It might be helpful to associate each response with a different one of four children.
What are the four children?
1. The child who is a
purist about colorblindness says the following: “Colorblindness must prevail. I don’t care if that means no meaningful integration right
now. It is more important that we
respect this value and attempt to purge ourselves of the vice race
consciousness. So do not use
racial categories in your admissions decisions. Don’t use them in your financial aid decisions. Don’t use them in your recruiting. Don’t use them in outreach. ”
2. The child who is a
wishful thinker says the following:
“This is a false conflict.
It’s not so hard to have integration in a colorblind fashion. All it takes is creativity and hard
work. If university administrators
weren’t so lazy, we could get both.”
3. The child who is a
pragmatist says the following: “I
like colorblindness, but a university without meaningful integration is
intolerable. So depart from
colorblindness as much as you need to in order to properly prepare your
students for a multiracial society.
But don’t go beyond that, and don’t do anything that would meaningfully
compromise your overall academic agenda.”
4. The child who wishes to
make up for past injustice says the following: “If our history had not been so shameful, our universities
would be integrated. Universities
should have admissions policies that allow them to resemble the universities
they would have been if America had always been the nation we want it to be.”
Which child is the Supreme
Court? Well over the years there
have been glimmers of all four children on the Supreme Court. In Bakke, the center of gravity
was the pragmatist child, Louis Powell.
Under this pragmatist approach, the legal test is not rigid
colorblindness. But it recognizes
the value of colorblindness through what is called “strict scrutiny.” No race-conscious policy is allowed
unless it is narrowly tailored to promote a compelling interest.
And under the pragmatist approach, integration of our campuses is a
compelling interest. But only for
pedagogic reasons, not for compensatory reasons.
At the Law School, our current admissions policy is a very clear
expression of this pragmatist approach. Modeled on the Harvard College undergraduate
admissions policy, our policy notes our aspiration to enroll meaningful numbers
of African Americans, Hispanics, and Native Americans in the entering class,
but then requires our admissions office to weigh that interest as only one
factor in a highly individualized, judgment-laden review of each file.
For that reason, critics of ours who are more like the child who wishes
to make up for past injustice have excoriated us for enrolling numbers of
African Americans that fluctuate dramatically each year, from as few as 6% of
the class to at most 9% of the class over the ten years the policy has been in
effect, even though our nation is 13% African American. And they have called our policy half
hearted because over that period we have rejected a higher percentage of black
and Latino applicants than we have of white applicants.
At the Supreme Court’s oral argument, we heard criticism from the other
side. The plaintiffs mostly
pressed the position of the child who is a purist. They urged the view that any consideration of race be simply
prohibited. But at the end of the
day I did not see five Justices tempted by that view.
More complicated was the temptation of the view that I have associated
with a child who is a wishful thinker – the idea that maybe somehow we could
have integration using a colorblind process, if only we tried harder. The Justices properly probed the
question – is that really wishful thinking? Because if there were some magical colorblind brick road to
racial integration, we clearly should take it.
But at the end of the day, the realities of American society mean that
such a road does not yet exist. At
least when it comes to the most selective law schools in the country, the pool
of most highly qualified applicants continues to show enough racial
stratification that we must pay attention to race if we desire meaningful
integration. And if you look
beneath the surface of things like the so-called percentage plans of Texas and
Florida, you find that either, on the one hand, they are not truly race
neutral, or on the other hand, they do not produce meaningful integration at
the most highly selective law schools.
And so at the end of the day I do not believe the Court will be temped
by wishful thinking. I do not
believe the Court will adopt the position of the colorblind purist, overturning
Bakke. And I do not believe the
Court will adopt the position of those who favor affirmative action to remedy
past injustice. I believe
that it will continue the pragmatist approach that has been the basis for our laws for the past 25
years.
Does that mean the Court will uphold our admissions policy at the Law
School? I hope so. The areas where the Court seemed to
have the most concern were twofold.
On the one hand, they wondered whether our policy’s use of the metaphor
of a “critical mass,” coupled with the fact that the total number of minority
students varied only between 10% and 17% over the ten year period, suggested
that our interest in integration was too rigid – too much like a quota. And on the other hand, they worried about
the fact that our policy does not have within it a so-called sunset provision
that formally requires reconsideration of our use of affirmative action at
stated intervals. That
reconsideration is left to the informal agenda-setting processes of a law school
faculty.
I suppose that those concerns might lead the Court to ask us to edit our policy somewhat. But at the end of the day, I do not think they will. These do not have the feel of Constitutional defects to me. In the end, I believe the Court will respect the pragmatic judgment that led us to adopt the policy we did, and that led the American mainstream to step forward and file friend-of-the-Court briefs in support of the University of Michigan. Because, at the end of the day, living in the times we live, this is quite simply the best we can do if we are to try to accommodate two values that we all hold dear but that we cannot pursue completely and simultaneously – the value of race neutrality and the value of integrated higher education.
