April 8, 2001

AFFIRMATIVE ACTION ON TRIAL IN MICHIGAN

Sooner or later the U.S. Supreme Court will have to pull apart the legal hairball with the 1978 Bakke case at its center.

Allan Bakke challenged minority set-asides for admission to the medical school at the University of California, and he won, sort of. Justice Lewis Powell joined one 5-4 majority saying the school's explicit quotas were unconstitutional, and a different 5-4 majority saying that race was one of many factors that could be considered in selecting a diverse student body.

The extent to which Powell's diversity rationale authorizes race-conscious admissions has been at issue ever since, with lower courts divided.

As they are right now, most notably, about admissions at the University of Michigan.

Michigan's minority preferences are the subject of two lawsuits brought by unsuccessful white applicants. One, Gratz vs. Bollinger, concerns undergraduate admissions (Lee Bollinger is Michigan's president). Michigan too had had a set-aside program, which it maintained for nearly 20 years after Bakke. That says all you need to know about the mind-set of Michigan's administration, but in 1998, knowing it was headed to court, the university switched to a system that automatically awarded black and Hispanic applicants 20 extra points on a 150-point scale -- the equivalent of one full grade point.

In December, U.S. District Judge Patrick Duggan ruled that Michigan's new policy was constitutional (though he agreed with the plaintiffs that the old one wasn't). He relied heavily on the testimony of Patricia Gurin, chair of Michigan's Department of Psychology, brought in by the university as an expert witness.

Gurin's report, Duggan said, was "solid evidence" that "a racially and ethnically diverse student body produces significant educational benefits" and thus the university's means of ensuring a certain level of such diversity passed the constitutional test of fulfilling "a compelling government interest."

The second case, Grutter vs. Bollinger, concerned law-school admissions.

The law school aimed for a class containing at least 10 percent to 12 percent of minorities it deemed "underrepresented" -- African Americans, Native Americans and selected Hispanics (not all). Students in the favored groups were admitted with far weaker credentials than whites or Asians. Even the university's own witness conceded that applying the same standards to all applicants would reduce minority enrollment from 14 percent to 4.5 percent.

In that case, U.S. District Judge Bernard Friedman ruled last month against the university. He too noted Gurin's testimony, but found that the existence of educational benefits was not sufficient to meet the constitutional standards set by Powell in Bakke.

Both cases are on appeal, and whatever the appeals court says, will undoubtedly be appealed to the Supreme Court.

It is important to know, therefore, that the Gurin report falls far short of accepted scholarly standards and its conclusions are not supported by the evidence. That won't surprise anyone familiar with the shabby defenses mounted by advocates for racial preferences, but the devastating details are spelled out in a report issued this week by the National Association of Scholars (http://www.nas.org).

The authors are Thomas Wood, executive director of the California Association of Scholars and a co-author of California's Proposition 209 banning race and gender preferences, and Malcolm Sherman, associate professor of mathematics and statistics at the State University of New York at Albany.

The definitive work on whether a larger minority presence on campus confers educational benefits was done by Alexander Astin of UCLA, who concluded (no doubt to his great regret) that it did not.

Astin's work drew on a massive database maintained by the Higher Education Research Institute at UCLA. It is not generally available to researchers -- a scandal in itself -- but Gurin was granted access. She admitted during her deposition that her colleagues chose which schools to include, and she didn't know which ones they were, nor whether Michigan was among them.

Gurin's claims focus on what she calls "diversity experiences," such as taking ethnic-studies courses or participating in cultural-awareness workshops.

But they're not on trial; the legal issue is whether using racial preferences to increase minority enrollment is constitutional, and to that issue her claims are simply irrelevant to Michigan's case.

Would that judges recognized it.

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