The University Record, November 26, 1997

Panelists discuss history of affirmative action, lawsuit

Faculty members (from left) Carl Cohen, Terrance Sandalow and Bunyan Bryant provided information on the background of affirmative action at the opening session of last week's symposium. Photo by Bob Kalmbach


By Kerry Colligan

"Our conduct is in flagrant violation of the principles set forth in the Bakke decision," Carl Cohen, professor of philosophy, said of the University's admissions policies. "Discrimination against or for anyone on the basis of skin color, race or sex is morally wrong. I think we all understand that."

Cohen was one of the panelists at the first of a week-long series of discussions titled "Affirmative Action 101: Understanding the Controversy." Cohen joined Bunyan Bryant, professor of natural resources, and Terrance Sandalow, former dean of the law school, on Nov. 17 to discuss the history of affirmative action.

And, though the panelists clearly were not in agreement about the lawsuit, or the legality or justification for affirmative action, they did present many of the issues with candor.

Sandalow opened the session with a review of legal history with an eye for its application to the current lawsuit brought by the Committee on Institutional Rights. He outlined three major legal precendents: the 14th Amendment, which guarantees equal protection under the law; Title VI of the 1964 Civil Rights Act, which forbids discrimination in programs receiving federal financial assistance; and the 1978 benchmark Bakke case in which the U.S. Supreme Court ruled it is constitutionally permissible to use race as one of the factors in admissions procedures. Sandalow said the important thing to note is that "the idea that the Constitution is color blind has never been accepted by the Supreme Court."

This, he said, is vital to the University's lawsuit because there are instances in which it is beneficial to consider race. To illustrate his point, he asked the 150-plus-member audience, "Should the FBI consider race when trying to infiltrate a white supremacist organization?"

While neither Cohen nor Bryant dealt substantively with the legal history of affirmative action, both expressed strong opinions about the justification for its existence. Bryant said that affirmative action programs have not yet begun to compensate for a history of slavery and systemic racial discrimination. "Whites don't have to practice racism because institutions are practicing it for them. While they might treat others equally, it's not enough. We need to talk about the debt this country has to pay. You cannot negate 300 years of slavery and 100 years of oppression."

Cohen then questioned how a racial group can be indebted to another: "Whites as a group do not have rights and duties. Blacks do not. Human beings have rights and duties," Cohen said. The proper means of addressing racial discrimination and hostility, Cohen said, is to "stop it now."

Ending affirmative action, as Cohen suggests, is not the answer, according to Sandalow. Sandalow said he feels the Supreme Court will agree with the argument that it is important for the educational environment to have a diverse student body. There is a compelling social interest in providing that kind of education, he said. Cohen, however, disagreed, stating that a compelling social interest does not matter. After reading from Title VI, Cohen said, "Does the University discriminate by race? Yes. In fact, we say in cold print that we intend to discriminate. While our motives are honorable, the practice is still illegal."

Terrance Sandalow wrote a letter to the editor in the December 10, 1997 issue regarding the above article.