The University Record, June 19, 2000


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Lawsuits article erred

University staff members, you note (June 5, 2000, Record), express a concern that they have correct information about the admissions lawsuits now in progress in the federal courts, to share with incoming students. In that healthy spirit, I would like to observe that there are several serious errors in your account of the background of those cases:

Item: “that attaining the educational benefit of diversity is a compelling governmental interest justifying the use of race as a factor in admissions” was not (as you mistakenly report) a judgment of the Supreme Court in the Bakke case in 1978. It was the opinion of only one justice, Lewis Powell; no other member of the Court joined that portion of his opinion, and no Supreme Court justice since that time has expressed agreement with that claim.

Item: Even Justice Powell did not hold (as you mistakenly report) that diversity is a compelling interest “as long as all students admitted are fully qualified and their admissions are not based on quotas.” Justice Powell (upon whose language our University relies) said no such thing. Indeed, he wrote explicitly that the distinction between quotas and goals is a “semantic distinction” that is “beside the point.” Whether using quotas or goals, he went on to say, what counts is whether the admissions program relies upon “a line drawn on the basis of race and ethnic status.” [438 U.S.265, at p.289]

Item: The Center for Individual Rights (CIR), suing us in the belief that our race-based admissions are unconstitutional, has not (as you mistakenly report) focused upon “dismantling affirmative action across the country.” It supports much affirmative action. That Center has focused upon dismantling admission programs that give preference by race or ethnicity. Some (but by no means all) affirmative action does give race preference; yet much affirmative action does not do so, and is entirely lawful and just.

Your report fails to note that the admissions program at the University of California, at issue in the Bakke case, was struck down. Allan Bakke won; he was ordered admitted, and he completed his medical education there.

One further comment I beg to submit: The University deputy general counsel correctly points out that race-blind admissions nationwide would increase white students’ odds of being admitted by only 1.2 percent. At the University of Michigan the improvement of the odds would probably be much greater. But at any institution, to give by race is to take by race—and every white student who would otherwise have been admitted but was rejected because his or her skin was the wrong color, was rejected 100 percent. Injustice is not excusable because it is done only to a few.

Carl Cohen, professor of philosophy