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‘Scrimmage’ previews affirmative action case
From left, Richard Banks, Roger Pilon, Peter Rubin,Curt Levey and Jonathan Alger took part in a Law School scrimmage March 15.
Photo by Tom Cogill
From 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

Two weeks before the U.S. Supreme Court hears their arguments on affirmative action admissions policies at the nation’s 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.

The 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 Institute’s Center for Constitutional Studies; and Peter J. Rubin, associate professor of law at Georgetown University Law Center.

America’s 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.

Affirmative 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.”

In 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.”

Alger 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 settings.”

He said there is “no trade off” of affirmative action for merit-based admissions decisions. “It’s not just a matter of grades and test scores. Students are chosen for what they can contribute to the education of their peers.”

As for the contention that U-M is essentially maintaining a quota for minority students, Alger said, “That’s not how we operate. Everyone competes against the entire applicant pool. Race is just one of many plus factors.”

Levey responded first by saying he would use the term “racial preferences” about the issue rather than “affirmative action,” because “that’s what it is.”

“At U-M, you get 20 points if you are black, Hispanic or Native American. If it weren’t a racial preference, we wouldn’t 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.”

“The real story here,” Levey contended, “is the education disease — the test score discrepancy between blacks and whites — that creates the need for the preferences.”

Rubin contended that without affirmative action “we would have essentially all-white classes at the elite law schools.”

“Color-blindness sounds nice but it would just freeze in place the conditions, the disparities, in society today that reflect the legacies of racism.”

Pilon 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.

“When you have a plan like Michigan’s it comes close to being quotas.”

Banks 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.”

Both sides meet again April 1 at the U.S. Supreme Court.


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