affirmative action case
by Tom Cogill
left, Richard Banks, Roger Pilon, Peter Rubin,Curt Levey and
Jonathan Alger took part in a Law School scrimmage March 15.
The event was a precursor to the hearing April 1 when they
argue their case before the U.S. Supreme Court.
By Michael Marshall
weeks before the U.S. Supreme Court hears their arguments on affirmative
action admissions policies at the nations public universities,
the opposing sides in Grutter vs. Bollinger held a pretrial scrimmage
at the Law
School March 15 as the main event of the fourth annual Conference
on Public Service and the Law.
panel brought together Jonathan Alger, assistant general counsel
for the University of Michigan (the defendant in the case brought
by Barbara Grutter, an unsuccessful applicant to the U-M Law School
in 1997); Stanford University law professor Richard Banks; Curt
Levey, director of legal and public affairs for the Center for
Individual Rights (which is representing Grutter); Roger Pilon,
director of the Cato Institutes Center for Constitutional
Studies; and Peter J. Rubin, associate professor of law at Georgetown
University Law Center.
goals of transcending race and lessening racial disparities present
conflict between two actions, Banks said. Transcending race requires
ignoring it, but eliminating disparities means paying it close
attention. It is not clear how to translate these goals
into constitutional doctrine, he said.
action policies are directed toward the problem of the color
line, Banks added. They are not simply about past
inequalities. Those inequalities continue to make themselves felt
in our daily lives.
a prologue to the panel discussion, U.Va. Law School Dean John
C. Jeffries Jr., author of a biography of Justice Lewis Powell,
whose opinion in the 1978 Bakke case is the foundation for current
college affirmative action policies, noted that the argument has
changed little in 25 years. This is a remarkably durable
dispute. The fault lines have remained stable.
argued that public institutions should be color-blind, that U-M
is sacrificing the ideal of merit and that it is essentially using
quotas for minority admissions.
Alger said, Having the goals of color-blindness does not
mean you have to ignore race. It does matter as the Supreme
Court said in Brown vs. Board of Education in education
said there is no trade off of affirmative action for
merit-based admissions decisions. Its not just a matter
of grades and test scores. Students are chosen for what they can
contribute to the education of their peers.
for the contention that U-M is essentially maintaining a quota
for minority students, Alger said, Thats not how we
operate. Everyone competes against the entire applicant pool.
Race is just one of many plus factors.
responded first by saying he would use the term racial preferences
about the issue rather than affirmative action, because
thats what it is.
U-M, you get 20 points if you are black, Hispanic or Native American.
If it werent a racial preference, we wouldnt be here
today. There is no constitutional prohibition against diversity.
The policy difference is over whether preferences get you to a
color-blind society faster or not.
real story here, Levey contended, is the education
disease the test score discrepancy between blacks and whites
that creates the need for the preferences.
contended that without affirmative action we would have
essentially all-white classes at the elite law schools.
sounds nice but it would just freeze in place the conditions,
the disparities, in society today that reflect the legacies of
observed that characterizations of affirmative action policies
run the spectrum from benign to malignant, but disagreed that
no one feels harmed by them. I remind Mr. Alger that there
are plaintiffs in this case. There are people who experience these
policies as us-versus-them.
you have a plan like Michigans it comes close to being quotas.
found both stances on affirmative action problematic. We
hear forward-looking arguments today about how things would be
improved by the diversity outcome. But the classroom diversity
argument is troublesome because it equates viewpoint with status.
sides meet again April 1 at the U.S. Supreme Court.