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In order for the answer to be yes, UM must show that it has a "compelling interest" in such discrimination. At trial, the school tried to do this by presenting the court with an expert-witness report, built on student-survey data, that purports to show a correlation between a racially diverse student body and improved educational outcomes. There is no precedent for the Supreme Court to allow racial discrimination simply because a social scientist has purported to find a statistical correlation between that discrimination and some social good. And it would be surprising were it otherwise. After all, there are all kinds of dubious social-science surveys, and no shortage of studies that purport to find a correlation between, in particular, improved educational outcomes and various educational techniques. For instance, there are studies that show a student's prior piano instruction and a classroom's interior design are important variables. But such studies are rarely definitive and frequently subject to refutation or contrary interpretation. Bilingual education, for instance, has its supporters with their studies, and it opponents with theirs. Such is the nature of social science generally and survey data in particular. Which brings us back to the University of Michigan cases. It has recently been revealed that UM was very selective in the survey data it used in the expert-witness report it presented at trial. It turns out that UM had collected a lot of other survey data that, inconveniently, undermined its claims about the salutary educational effects of a racially diverse student body — but that, conveniently, was ignored in the report it gave the judge. This evidence was uncovered by freelance journalist Chetly Zarko, and is analyzed in a report by Drs. Robert Lerner and Althea Nagai (posted on the Center for Equal Opportunity's website). Zarko has requested additional data also possessed by UM, but the school is refusing to share it. (An editorial last week in the Detroit News called on the university to release the information, saying its rationale in refusing to do so is "dishonest and violates the spirit of the Freedom of Information Act"). This is not the first time the proponents of diversity have refused to share the complete data they have collected in the course of one of their "studies." The much-cited 1998 book by William Bowen and Derek Bok, The Shape of the River, also purported to "prove" the value of diversity, but the data on which it relied has not been made generally available to other social scientists (Lerner and Nagai, for instance, were explicitly rebuffed in their efforts to obtain the data). The refusal to share evidence is, needless to say, antithetical to true science, social or otherwise. The UM expert-witness report had already been convincingly refuted in a counter study by Lerner and Nagai, and by another analysis written by Drs. Thomas Wood and Malcolm Sherman. Moreover, a separate study of "diversity" by a highly respected team of analysts — Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte — came to conclusions quite contrary to UM's report. Social-science survey evidence is simply too manipulable and indeterminate to justify something as divisive and unfair as racial discrimination. The segregationists in Brown v. Board of Education cited testimony by educators, psychiatrists, and psychologists, including the chairman of the psychology department at Columbia University; the segregationists in the earlier Sweatt v. Painter (involving the University of Texas law school) likewise had their experts and, indeed, cited the former president of Harvard University. It's no surprise that the current proponents of discrimination have found some experts, too. But if the Supreme Court were to carve out a "social-science exception" to the Constitution's guarantee of equal protection of the laws, it would set a precedent that, in its long-term consequences, ought to make everyone very nervous. — Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia. |
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he nub issue in the two University of Michigan affirmative-action cases
now pending before the Supreme Court is this: Does a desire for "diversity"
in a student body justify racial discrimination in the selection of students
in order to achieve it?
