Discrimination wins in Michigan law school

May 25, 2002

The University of Michigan won a squeaker of a victory this week when the 6th Circuit Court of Appeals approved on a 5-4 vote the racial-preference admissions policy of its law school.

In one sense, the decision hardly matters because it is unlikely to be final. Not only will it be appealed to the Supreme Court, but another Michigan case involving undergraduate admissions is pending before the appeals court and however that one turns out, it too will be appealed to the Supreme Court.

Yet it's disappointing that a majority of the court, however narrow, was persuaded by the university's flimsy case. Judge Danny Boggs, who wrote the stinging dissent, has much the better arguments (the opinions are at http://laws.findlaw.com/6th/02a0170p.html on the Web).

The case was brought by Barbara Grutter, an unsuccessful applicant whose college grades and LSAT scores fell in a range where underrepresented minorities were virtually certain of admission while applications from disfavored groups were scarcely even read.

The university conceded that only one in four of these students would be admitted if race were not a factor (officials believe that's an argument for the policy).

Of course it could be argued that grades and test scores aren't the best or the only way to choose applicants. "Michigan is perfectly free to abandon or restructure those measures," Boggs said in his dissent.

But the university didn't make that argument. "Those are the standards it has chosen to distinguish among majority candidates," he said, "and to distinguish among minority candidates."

The law school just sets a lower threshold for applicants from the specific groups it has decided should be eligible for preferences. They are as likely to get in with a high C or low B average as nonminority students with an A average.

The university defends this invidious practice on grounds that achieving "diversity" is a compelling state interest, sufficient to overcome the Equal Protection guarantee of the Fourteenth Amendment. Its published policies claim that preference in admissions might also be given to "an Olympic gold medal, a Ph.D. in physics, the attainment of age 50 in a class otherwise lacking anyone over 30, or the experience of having been a Vietnamese boat person."

But in practice, the only criterion considered with a heavy thumb on the admissions scale is race/ethnicity. The university argues that underrepresented minorities must be present in sufficient numbers to constitute a "critical mass" lest they be too intimidated to speak out. What breathtaking condescension!

Or their classmates might consider them merely tokens. Of course, if they would have been rejected save for their race, they are tokens no matter how many of them there are.

What percentage is sufficient to reach critical mass, the university does not say, because if it did say then it would have a quota and everybody knows quotas are unconstitutional. But the number enrolled is suspiciously precise -- between 13.5 percent and 13.7 percent from 1995 through 1998, the most recent data available when the lawsuit was heard. And it also depends, roughly, on the group's representation in the population as a whole.

"Indeed, the law school does not appear to believe that the critical mass for Native Americans, for example, is nearly as large as it is for blacks and Hispanics," Boggs said.

He likens the way Michigan accepts law students, and its declared reasons for doing so, to Ivy League policies in the 1930s to give preferences to Gentiles over Jews -- in that case, as in this, "to produce a mixture of students in the school that was closer to the proportion that prevailed in society."

"Harvard in the 1930s did not have to say that exactly 87 percent of the seats were set aside for Gentiles -- it just had to apply an admissions system based on 'character' that achieved roughly the same result," Boggs says.

In his view, Boggs said, the effect of Michigan's policies is similar to that of the Harvard plan, "because a significant proportion of those persons who are excluded because of racial discrimination" are Jews.

If a system requires that no group may be "underrepresented," mathematics decrees no group may be "overrepresented," either. Imposing rough proportionality along ethnic lines would entail, however unintentionally, that Jews would be worse off than they were under President Lowell's Harvard plan.

Fine intentions do not justify racial discrimination nor mitigate its ugly results. The court should have told Michigan to cut it out.