On Tuesday the Supreme Court hears oral arguments in the University of Michigan cases testing whether colleges and universities can legally engage in racial discrimination as long as they frame it as the pursuit of diversity. The University of Michigan, realizing that its case is tenuous, early on chose a novel strategy: It decided to inundate the Court with evidence that its position, however legally doubtful, is massively popular. To that end, it sought supporters willing to file friends-of-the-court briefs.
With the amicus briefs rolling in, supporters of the University of Michigan have been spinning this phenomenon as proof that there is a “consensus” in higher education — nay, in the United States as a whole — that racial preferences in the pursuit of “diversity” are beloved among all ethically respectable people. The strategy is to persuade the Court that diversity is now so embedded in American culture that the Court itself would be out of step if it insisted on some picayune idea of adhering to the rule of law.
How well are the diversiphiles doing? As Harvard president, Lawrence Summers, and his Harvard Law School colleague Laurence Tribe pointed out in an op-ed in the Saturday edition of the New York Times, the University of Michigan’s supporters have submitted “a record-setting 66 friend-of-the-court briefs from hundreds of leading businesses, members of Congress, states, labor unions, professional associations, two former defense secretaries, three former chairmen of the Joints Chiefs of Staff and the former superintendents of all three service academies.” Pretty impressive. It looks like the diversiphiles have suborned much of America’s ruling class to pronounce in favor of racist policies. Forty years after Dr. Martin Luther King’s “I have a dream speech,” who would have thought it possible that a nouveau racism would become a mainstream and respectable opinion? Let alone that institutional leaders would preen about their success in making racial classifications work?
Against this avalanche, who would dare offer a dissenting opinion? Mr. Scott Dillon, for one. And who is this Mr. Dillon? Just a student or, to be more precise, a fourth year J.D./M.B.A. student in the University of Indiana School of Law at Bloomington and the Kelley School of Business. Mr. Dillon doesn’t sound like the retiring type and, rather than roll over for the diversiphiles, he has decided to offer some resistance. Last week he published an article in an independent campus newspaper, the Hoosier Review, titled “Deception for Diversity?” in which he dismembered his law school’s amicus brief in support of the University of Michigan. [Click here.]
Essentially he accuses Indiana University of submitting a deeply misleading account of how “diversity” actually works in admissions at its law school. Its amicus brief, for example, asserts that the school gives great weight to the law boards (LSATs) and to undergraduate grades, but also considers many other factors. At the end of its long list of these “other factors” come “race and ethnicity.” But as Mr. Dillon shows, half of the students are admitted on the basis of LSAT scores and the other half go into a pool in which race becomes a key consideration. He quotes a former admissions committee member who candidly explains that each year, “to meet de facto quotas, we leapfrog less qualified minority applicants over approximately 330 more qualified non-minority applicants.”
The Indiana University amicus brief presents many other doubtful statements: that the admissions committee reviews the applicant’s “entire file;” that it does so “holistically,” and that it does not “reserve” any set number of places for minority candidates. These are maneuvers aimed to show that the school isn’t engaging in legally prohibited forms of discrimination on the basis of race such as using race as the main factor or employing racial quotas. But Mr. Dillon compares what the amicus brief says to what the school actually does. He quotes a law school internal memo mentioning the chairman of the admissions committee’s “concern that a minimum of five blacks per section of the first years class is needed.” And he observes that as the number of African-black applicants to the school nearly doubled in the last three years, the number of blacks offered admission remained almost constant (52, 52, and 53).
The details add up to a powerful appearance that Indiana University simply lied in its amicus brief. But, hey, these are lawyers and I don’t want to be sued. So, they didn’t “lie.” They just presented a wholly misleading account of what they actually do.
Indiana University’s brief is only one of the 66 filed in support of the University of Michigan. Perhaps it is exceptional in its attempt to shade the truth. It is hard to know. But here at hand I have a copy of the amicus brief filed by Amherst, Barnard, Bates, and Bowdoin Colleges — by a total of 28 private liberal-arts schools, including my alma mater, Haverford College. Here on page 27 is a neat sentence:
After Bakke, each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of Justice Powell’s opinion sketching out a permissible approach (which five justices plainly supported), and set sail accordingly.
I very much doubt the truthfulness of the main clause of this sentence with its assertion of a good-faith effort on all these campuses after Bakke to review admissions procedures, but there is no way to tell. The more interesting bit is that parenthetical assertion that “five justices plainly supported” Powell’s “permissible approach.” Who the other four were is mysterious, since no other justice voted in favor of Powell’s “permissible approach” or even gave it a single word of approbation. In fact, we have gone 25 years without a Supreme Court opinion in which any other justice has endorsed Powell’s “permissible approach.”
This is one of those bizarre lies that obviously isn’t told to fool the ostensible audience. The Supreme Court knows the legal record of the Bakke case inside and out. So why should Amherst and the Amazing Amici bother to tell such a whopper? My guess is that they are playing to the gallery, which heartily approves of twisting the truth to advance the cause of diversity. The assertion of the historical falsehood supposedly bolsters the idea that all these colleges acted in good faith in building their racial preferences in admissions on the foundation of Powell’s dream of a diversity loophole in the Equal Protection Clause of the 14th Amendment.
Well, that’s two of 66 amicus briefs that are a little “counter-factual.” But don’t worry, I’m not going to go through all of them. That might be a worthy project for students at law reviews around the country. It would be interesting to see just how much prevarication, suppression of evidence, and misleading representation has gone into the cause of protecting the right of colleges and universities to discriminate on the basis of race.
Of course, all of this is possible because the proponents of racial preferences in higher education see themselves as fighting on the side of the underdog. The diversiphiles feel morally justified in their actions because, as they see it, the racial classifications are already there, embedded in the fabric of American society, so racial preferences in higher education are not really “imposing” racial disparity on anyone. They are just counteracting the racial inequities that are built into American life. And if they didn’t counteract those inequities, the disparity would just get worse and worse. Diversity gets its moral lift from the belief that it is fighting an old battle against exclusionary white privilege.
That moral lift, unfortunately, is much like the hydrogen that kept the Hindenburg zeppelin aloft: effective but highly combustible. Diversity works by stoking resentments and conjuring a false image of America as an oppressive society, one that systematically denies rights and opportunities to African Americans and other minorities. Racial inequities and personal bigotry do indeed persist in the United States and there is much to be said about the real causes, but enforced exclusion of African Americans from the opportunity to compete in the marketplace or to pursue higher education aren’t among them. The Hindenburg came to its fiery end at the conclusion of a trans-Atlantic flight in Lakehurst, New Jersey on May 6, 1937. It remains to be seen whether the lighter-than-air ship Diversity will survive its Supreme Court docking this spring.