You are to be applauded for the full coverage you have given to the affirmative action suit. However, I am disturbed by the loose use of the word "discrimination" in its secondary meaning.
At the outset I hope we can agree that places for freshmen are a limited resource. Accordingly, it must be allocated in some fashion. Allocation necessarily implies the making of distinctions, the primary meaning of discrimination. Indeed, making reasoned, open-minded distinctions must be a primary goal of the Michigan experience.
What is at issue is not discrimination but rather the criteria by which the allocations are determined and the relevance to the task of those criteria. In Michigan's case, as in other schools, there are multiple criteria, including high school grades and other records, test scores, a necessarily subjective judgment of the probability of benefit to the applicant and to society if admission is granted, place of residence, "legacy" status, faculty or other employment status of parent(s), gender, ability to pay, citizenship, race, and the patterns of the class that will result from an unknown yield. Let us acknowledge that each of these criteria involves discrimination in both senses of the word. Thus an a priori judgment that discrimination is an absolute evil in every case clearly doesn't yield a workable policy for the real world.
Benjamin Barber observed that "The 'best schools' . . . are best not because they offer the 'best education,' but because in large part they draw the best students---the best prepared, the best equipped, and possessing the best social and educational backgrounds . . . But the object of public schools is not to credential the educated but to educate the uncredentialed; that is, to change and transform pupils, not merely to exploit their strengths . . ." (An Aristocracy of Everyone , p. 12, Ballantine, 1992.
If Barber's notions have validity, and I believe that they do, the University has a moral and intellectual obligation not only to allocate places "properly" but also to seek to shape each entering class in a way calculated to attain Barber's goals.
A second factor, however, has not been mentioned so far in the discussions you reported. Discrimination, in the sense of prejudgment, is evil, at least in part, to the degree that the victim is disadvantaged in some significant way. Let us suppose that a white resident of, say, Ohio, is not offered admission while a lower scoring student of color from Detroit is accepted, all other criteria being equal (which they almost never are). To what extent is the Ohio student disadvantaged? I speculate that such a student can find a place at any number of other colleges or universities where a transforming change can be had. After all, under the best of circumstances not all qualified applicants can be accommodated at Michigan or any other school. In the worst days of entrance quotas for Jews--I lived through them as did Carl Cohen--it was rare that a persistent, resourceful, and/or resilient applicant for undergraduate study couldn't find a home. (Not true for certain professions where bias was rampant among employers.) This is especially true when similar criteria obtain across the board among most or all colleges as well as when total available supply of seats exceeds applicants demanding them.
On the other hand, should increasing numbers of colleges adopt the plaintiffs' desired course of action (or be forced to do so) we will have a classic commons situation producing aggregate social stratification far more evil than any occasional inconveni ence caused by Michigan's existing allocations of its limited spaces. Michigan, as all other American institutions, has an obligation to the larger society in which it lives, an obligation which it must weigh against the absolutist position.
Stephen A. Stone, LS&A '38